Exhibit 10.1
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CONTRACT OF SALE
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DATE: Contract of sale dated as of the 31st day of January, 2003.
PARTIES: BETWEEN, TOUCHSTONE APPLIED SCIENCE ASSOCIATES,
INC., with an address at 4 Hardscrabble Heights,
X.X. Xxx 000, Xxxxxxxx, Xxx Xxxx 00000 (the "Seller"),
which agrees to sell, and
26 XXXXXX, LLC, with an address at Xxxxxxxx &
X'Xxxxxx Real Estate Services, Inc., 000 Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (the
"Purchaser"), who agrees to buy the property,
including all buildings and improvements thereon
(the "Premises"), which are located as follows:
PREMISES: Street Address: 0 Xxxxxxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxx Xxxx
Tax Map Designation:
which Premises are more fully described in
Schedule "A" annexed hereto and made a part
hereof.
FIXTURES: The Premises also include all fixtures,
appliances and similar items attached to or used
in connection with the Premises (the
"Fixtures"), unless specifically excluded below.
Seller states that the Fixtures are paid for and
owned by Seller free and clear of any lien other
than the Existing Mortgage(s), which lien of the
Existing Mortgage will be discharged prior to
closing, unless assumed by Purchaser. The
Fixtures include but are not limited to plumbing
fixtures, heating fixtures, lighting fixtures,
and such other fixtures and appliances and
similar items which are located at the Premises,
all in "AS IS" and "WHERE IS" condition.
PURCHASE 1. The Purchase Price is: 2,875,000.00
PRICE:
Payable as follows:
On the signing of this contract,
by check subject to collection to
be held in escrow pursuant to
paragraph 23 143,750.00
BALANCE AT CLOSING: 2,731,250.00
ACCEPTABLE 2. All money payable under this contract,
FUNDS: unless otherwise specified, shall be either:
a. Cash, but not over One Thousand and
00/100 ($1,000.00) Dollars;
b. Good certified check of Purchaser, or
official check of any bank, trust
company, or savings and loan
association having a banking office in
the State of New York, payable to the
order of Seller, without endorsement;
c. Money, other than the Purchase Price,
payable to Seller at Closing, may be by
check of Purchaser up to the amount of
Five Thousand and 00/100 ($5,000.00)
Dollars; or
d. As to otherwise agreed to in writing by
Seller or Seller's attorney.
SUBJECT TO 3. The Premises are to be transferred subject to:
PROVISIONS:
a. Laws and governmental regulations that
affect the use and maintenance of
Premises, provided that they are not
violated by the buildings and
improvements erected on the Premises.
b. Consents for the erection of any
structure on, under, or above any
streets on which the Premises abut.
c. Encroachments of xxxxxx, areas, cellar
steps, trim and cornices, if any, upon
any street or highway, provided
Purchaser's title company will
affirmatively insure over such
encroachments without additional
premium.
d. Covenants, easements and restrictions
of record, if any, provided that they
do not prohibit the present use and
maintenance of the structure or
structures now on the Premises.
e. Such state of facts as an accurate
survey or a personal inspection of the
said Premises may reveal, provided the
same does not render title unmarketable.
f. Public utility easements, agreements or
declarations of record.
g. Building and zoning regulations and
ordinances of the city, town or village
in which the Premises are situate,
provided same do not prohibit the
present use and maintenance of the
structure now on the Premises.
INSPECTION 4. The Purchaser shall have a period of forty-
PERIOD: five (45) days (the "Inspection Period")
commencing upon the receipt by Purchaser or
Purchaser's attorney of a fully executed copy of
this Agreement, to conduct any and all tests,
reviews, investigations, inquiries, research and
analysis of the subject Premises, including
environmental audits, engineering studies,
planning and zoning reviews, and financial
reviews, which in Purchaser's discretion are
necessary and desirable. In the event Purchaser
is not satisfied with any aspect of the subject
Premises for any reason, the Purchaser may elect
to cancel this Agreement upon written notice
give not later than the date the Inspection
Period expires with time of the essence as to
that date. Upon such cancellation, the down
payment shall be refunded to Purchaser together
with all accrued interest, and this Contract
shall be of no further force and effect. In the
event Purchaser elects to cancel this Agreement
pursuant to this Paragraph, and provided that
Seller reimburses Purchaser for all of its
expenses in obtaining the requested following
items, Purchaser shall provide Seller with
copies of all land related studies, reports,
environmental audits, surveys, maps, and test
results, which the Seller shall request.
ACCESS TO 5. Seller hereby grants to Purchaser its
PREMISES: agents, servants, employees and consultants, a
license to enter in and upon the Premises upon
reasonable notice to the Seller throughout the
term of this Agreement for the purpose of
inspecting the Premises which inspections may
include, but are not limited to, conducting
surveys, physical inspections, tests,
engineering and construction evaluation and
reports, architectural study and planning, and
environmental study, testing, borings and such
other tests and evaluations as are reasonably
required for the full and complete evaluation of
the Premises and the full and complete
prosecution of any applications for governmental
approvals. The Purchaser agrees to conduct such
inspections in such manner so as to cause a
minimum of disturbance to the Seller. In
connection with the exercise of the license
granted to Purchaser herein, Purchaser agrees to
hold Seller harmless from any loss, cost,
damages, lawsuit, and damage to person or
property, and the cost of litigation (including
attorneys fees) caused solely by Purchaser or
its agents, servants or employees in the
exercise of this license. Purchaser, or its
agents, shall maintain liability insurance of at
least $1,000,000 for each occurrence, naming
Seller on said policy as a certificate holder,
and further maintain worker's compensation
insurance for any employees entering the
Premises. After such access, Purchaser agrees
to return the Premises to substantially the same
condition as existed prior to said access, but
in no event will Purchaser be required to remedy
any condition found at the Premises.
TITLE 6. Seller shall give and Purchaser shall
COMPANY accept such title as any reputable title company
APPROVAL: licensed to do business in the State of New York
will be willing to approve and insure at
standard rates in accordance with their standard
form of title policy, subject only to the
matters provided for in Section 3 of this contract.
CLOSING 7. "Closing" means the settlement of the
DEFINED AND obligations of Seller and Purchaser to each
FORM OF DEED: other under this contract, including the payment
of the Purchase Price to Seller, and the
delivery to Purchaser of a bargain and sale deed
with covenant against grantor's acts, in proper
statutory form for recording so as to transfer
full ownership (fee simple title) to the
Premises, free of all encumbrances except as
herein stated. The deed will contain a covenant
by Seller as required by Section 13 of the Lien
Law.
CLOSING DATE 8. Closing will take place at the office of
AND PLACE: Rider, Weiner, Xxxxxxx & Calhelha, P.C., 655
Little Britain Road, Newburgh, New York, on or
before March 30, 2003.
BROKER: 9. Purchaser and Seller hereby state that they
have not dealt with any broker in connection
with this sale other than Prudential Serls
Commercial Group, and Seller agrees to pay the
broker the commission earned pursuant to a
separate agreement, when, as and if title
closes. Each party agrees to indemnify the
other against any loss, claim, damage or expense
(including attorney's fees) arising from a
breach of this representation. The provisions
of this Paragraph shall survive delivery of the
deed hereunder or the earlier termination of
this Agreement.
STREETS 10. This sale includes all of Seller's
AND ASSIGN- ownership and rights, if any, in any land lying
MENTS OF in the bed of any street or highway, opened or
UNPAID proposed, in front of or adjoining the Premises
AWARDS: to the center line thereof. It also includes
any right of Seller to any unpaid award by
reason of any taking by condemnation and/or for
any damage to the Premises by reason of change
of grade of any street or highway. Seller will
deliver, at no additional cost to Purchaser, at
Closing, or thereafter, on demand, any documents
which Purchaser may require to collect the award
and damages.
APPORTION- 11. The following are to be apportioned as of
MENTS: midnight of the day before the day of Closing:
a. Taxes, water charges and sewer rents
based on the fiscal period for which
assessed.
b. Rents, if any.
c. Operating expenses, including water,
fuel and utilities.
If Closing shall occur before a new tax rate is
fixed, the apportionment of taxes shall be upon
the basis of the old tax rate for the preceding
period applied to the last assessed valuation.
LEASES: 12. This sale is subject to and conditioned
upon the execution of a lease agreement by which
the Purchaser shall lease the Premises back to
the Seller on the terms and conditions set forth
in Exhibit "C." The purposes for this
transaction, including the lease back to the
Seller, is for Seller to utilize the equity in
the real property in furtherance of its
business, to provide capital for expansion and
new equipment, eliminating debt associated with
the real estate, and permitting Seller to focus
on its primary business. The Purchaser's
purpose is to invest in real estate, its primary
business, and realize a fair return on its
investment given the nature and utilization of
the property.
This transaction does not constitute a
joint venture between Seller and Purchaser, nor
is this a loan transaction. The lease term is
only ten (10) years, the Purchaser does not have
a purchase option, and both the purchase price
under this contract, and the rental amount under
the Lease are at fair market values.
ALLOCATION 13. The parties hereto agree that no part of
OF PURCHASE the purchase price set forth in this Contract is
PRICE: attributable to personal property.
ALLOWANCE 14. Seller has the option to credit Purchaser
FOR UNPAID as an adjustment of the Purchase Price with the
TAXES, ETC: amount of any taxes, unpaid taxes, assessments,
water charges and sewer rents, together with
interest and penalties thereon to a date not
less than five (5) business days after Closing,
provided that official bills therefor computed
to said date are produced at Closing, or
Purchaser's title company shall be willing to
insure Purchaser against such charges.
USE OF 15. If there is anything else affecting the
PURCHASE sale which Seller is obligated to pay and
PRICE TO discharge at Closing, Seller may use any portion
PAY ENCUM- of the balance of the Purchaser Price to
BRANCES: discharge it. If requested by Purchaser, Seller
shall discharge any Existing Mortgage on the
Premises or cooperate in the assumption of the
Existing Mortgage by Purchaser. As an
alternative, Seller may deposit money with the
title insurance company employed by Purchaser as
required by it to assure discharge, but only if
the title insurance company will insure
Purchaser's title clear of the matter or insure
against its enforcement out of the Premises.
Upon request made within a reasonable time
before Closing, Purchaser agrees to provide
separate certified checks as requested to assist
in clearing up these matters.
AFFIDAVIT 16. If a title examination discloses judgments,
AS TO bankruptcies or other returns against persons
JUDGMENTS: having names the same as or similar to that of
Seller, Seller shall deliver a satisfactory
detailed affidavit at Closing showing that they
are not against Seller.
TRANSFER 17. At Closing, Seller shall deliver a check
AND payable to the order of the appropriate county
RECORDING officer in the amount of any applicable transfer
TAXES: tax payable by reason of the delivery or
recording of a deed. The Purchaser shall pay
the recording fees for the recording of the deed.
TRANSFER 18. Seller and Purchaser shall complete, sign
TAX and deliver at Closing the New York State
REPORT: Combined Real Estate Transfer Tax Return and
Credit Line Mortgage Certificate (Form TP-584),
which Seller shall deliver to the Purchaser's
title company with Seller's check as and for
payment of the transfer tax due. Any costs or
fees necessary to record the deed, to file the
Form TP-584 or to file the Real Property
Transfer Report (Form RP-5217) shall be paid by
the Purchaser. In addition, Seller shall assign
to Purchaser all service contracts and any
applicable warranties at Closing.
CONDITION 19. During the Inspection Period, Purchaser
OF shall have an opportunity to examine the
PREMISES: Premises and, should Purchaser decide to proceed
to Closing at the end of the Inspection Period,
Purchaser shall take the Premises "AS IS."
Neither the Seller nor any agent or
representative of the Seller has made any
representations or promises upon which the
Purchaser has relied regarding the physical
condition of the Premises, the equipment and
fixtures therein contained, or any other matter
or thing relating to the property hereby
contracted to be sold, except as is expressly
set forth in this agreement. The Seller shall
not be liable for or in any manner bound by any
verbal or written statements or representations
by any person or persons, unless such
representations are expressly set forth in this
agreement. Prior to closing, Seller shall
maintain the Premises and all Fixtures,
including landscaping, snow removal, ordinary
repair and cleaning.
NO 20. The Seller makes no representations nor
WARRANTIES: warranties concerning the condition, fitness for
a particular purpose, or operation of the
improvements, fixtures, appliances, or other
property included in this transaction.
TITLE 21. If the Seller shall be unable to convey a
DEFECTS good and marketable title subject to and in
& LIMIT accordance with this agreement, the sole
OF obligation of the Seller shall be to refund the
LIABILITY: Purchaser's down payment made herein, with
interest thereon, and to reimburse Purchaser for
the cost of title examination (expense actually
incurred by Purchaser for title examination, in
no event to exceed net amount which would be
charged by a title company in the County of
Xxxxxx for title examination of Premises
described herein without issuance of a policy)
and survey, if Purchaser had ordered and paid
for same, as well as environmental and
engineering inspections, and upon making of such
refund, this agreement shall wholly cease and
terminate and neither party shall have any
further claim against the other by reason of
this agreement, and the lien, if any, of the
Purchaser against the Premises shall wholly
cease. The Seller shall not be required to
bring any action or proceeding or otherwise to
incur any expenses to render the title to the
Premises marketable. The Purchaser may,
nevertheless, accept such title as the Seller
may be able to convey without any further
liability on the part of the Seller and without
any abatement or reduction of the Purchase
Price. The acceptance of a deed by the
Purchaser shall be deemed to be a full
performance and discharge of every agreement and
obligation on the part of the Seller to be
performed pursuant to the contract.
Notwithstanding the foregoing, if a defect can
be remedied by the payment of money only, in an
amount not to exceed $50,000.00, then Seller
shall remedy such default.
NOTICE OF 22. Purchaser shall notify Seller's attorney in
TITLE writing of any objections to title within forty-
DEFECTS: five (45) days of the date of this agreement.
Delivery of a title report prepared by a title
company licenced to do business in the State of
New York to Seller's attorney shall be deemed
due notice of the objections set forth therein.
Seller shall be entitled to a reasonable
adjournment of the Closing date in order to
clear any such objections to title, but if
Seller is unable to clear any such objections to
title, Seller shall have the option to terminate
this contract by notifying Purchaser's attorney
in writing by certified mail, return receipt
requested, of such termination, whereupon the
terms and conditions set forth in the preceding
paragraph herein shall apply.
DOWN 23. The down payment shall be held in escrow by
PAYMENT Rider, Weiner Xxxxxxx & Calhelha, P.C. (the
IN ESCROW: ("Escrow Agent"), as herein provided in an
interest bearing account maintained at Warwick
Savings Bank, Xxxxx 000, Xxxxxxxx, Xxx Xxxx,
until Closing or until a default hereunder by
Purchaser, at which time it shall be delivered
to Seller. If Seller defaults hereunder, the
down payment shall be returned to Purchaser,
together with all accrued interest. The
interest earned on the down payment shall be
credited at closing against the sums due Seller
from Purchaser. In the event this agreement
terminates prior to closing, the party entitled
to receive the down payment shall also be
entitled to the interest earned.
The Escrow Agent shall not be liable to any
of the parties for any act or omission, except
for bad faith or gross negligence, and the
parties hereby agree to indemnify the Escrow
Agent and hold the Escrow agent harmless from
any claims, damages, losses or expenses
(including attorneys' fees) arising in
connection herewith. The parties acknowledge
that the Escrow Agent is acting solely as a
stakeholder for their convenience. In the event
of a dispute between the parties, the Escrow
Agent shall not be bound to release and deliver
the escrow fund to either party but may either
continue to hold the escrow fund until Escrow
Agent is otherwise directed in a writing signed
by all parties hereto or Escrow Agent may
deposit the down payment with the clerk of any
court of competent jurisdiction. Upon such
deposit, the Escrow Agent will be released from
all duties and responsibilities hereunder.
The Escrow Agent shall not be required to
defend any legal proceedings which may be
instituted against it in respect to the Premises
or the subject matter of this agreement unless
requested to do so by Purchaser or Seller and
indemnified to its satisfaction against the cost
and expense of such defense (including
attorneys' fees). The Escrow Agent shall not be
required to institute legal proceedings of any
kind and shall have no responsibility for the
genuineness or validity of any document or other
item deposited with it or the collectability of
any check delivered in connection with this
agreement. Escrow Agent shall be fully
protected in acting in accordance with any
written instructions given to it hereunder and
believed by it to have been signed by the proper
parties.
The parties agree that, notwithstanding the
role of Rider, Weiner, Xxxxxxx & Calhelha, P.C.
as Escrow Agent, Rider, Weiner, Xxxxxxx &
Calhelha, P.C., may and does represent Seller as
legal counsel in connection with the subject
matter of this agreement and otherwise.
SURVEY: 24. Purchaser shall have the right to have a
survey and description prepared of the Premises
provided it is prepared by a licensed surveyor
or professional engineer at Purchaser's cost and
expense. If a copy of such survey and
description are provided to Seller's attorney
prior to that date of Closing, and provided such
survey is certified to Seller, then Seller
agrees to use such survey description in the
deed of conveyance in lieu of the description
set forth in this contract. Seller makes no
representation or warranty as to the accuracy of
the description supplied by the Purchaser or its
title company by virtue of its inclusion in the
deed.
PURCHASER 25. If Purchaser shall default hereunder, the
DEFAULT: down payment paid by Purchaser to Seller on
account of this agreement may, at Seller's
option, be retained by Seller, as Seller's sole
and exclusive remedy as liquidated damages. In
the event Seller elects to retain the down
payment, both parties shall be relieved and
released of and from any further liabilities
hereunder, and Purchaser expressly releases any
lien Purchaser may have against the property.
Seller shall have no right to seek specific
performance of this Contract as against
Purchaser or seek damages against Purchaser.
GENERAL 26. The following general provisions apply to
PROVISIONS: this agreement:
a. Benefits. All of the terms and
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provisions of this Agreement shall be binding
upon and inure to the benefit of the parties,
the Seller and the Purchaser, and their
respective successors and assigns.
b. Entire Agreement. This Agreement and
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the Schedules and Exhibits hereto contain the
entire Agreement between the Purchaser and the
Seller with respect to the transactions
contemplated herein; and no party shall be bound
by nor shall be deemed to have made any
representations, warranties or covenants except
those contained herein. This Agreement cannot
be modified, changed, discharged, extended, or
terminated except by an instrument in writing,
signed by the party against whom the enforcement
or any modification, change, discharge or
termination is sought.
c. Captions. The captions of the
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Paragraphs and subparagraphs of this Agreement
are for convenience and reference only, and are
not to be considered in construing this
Agreement.
d. Notices. Any notices, request,
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instrument or other document to be given
hereunder shall be in writing and, shall be
delivered personally or sent by certified,
registered or express mail, return receipt
requested, or by reliable overnight service, as
follows:
If to the Purchaser: 26 Xxxxxx, LLC
Xxx Xxxxxxxx
Xxxxxxxx & X'Xxxxxx Real
Estate Services, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxx Xxxxxxxxx Xxxxxxx, Esq.
XxxXxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxxxxxx Xxxx &
Xxxxxxxxxx, LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
If to the Seller: Touchstone Applied
Science Associates, Inc.
4 Hardscrabble Heights
X.X. Xxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, President
with a copy to: Rider, Weiner,
Xxxxxxx & Calhelha
000 Xxxxxx Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Each party may change its address for the
purposes of this Paragraph by giving written
notice of such change to the other party in the
manner herein provided.
If this Agreement provides for a designated
period after a Notice within which to perform an
act, such period shall commence on the date of
receipt or tender of the Notice. If this
Agreement requires the exercise of a right by
Notice on or before a certain date or within a
designated period, such right shall be deemed
exercised on the date of mailing or tender of
the Notice pursuant to which such right is
exercised.
e. Severability. In case any one or more
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of the provisions or parts of a provision
contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable
in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall
not affect any other provision or part of a
provision of this Agreement.
f. Invalidity Of Certain Provisions. If
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any provision of this Agreement shall be invalid
or unenforceable, the remaining provisions of
this Agreement shall not be affected thereby and
every provision of this Agreement shall be
enforceable to the fullest extent permitted by law.
g. Governing Law. This Agreement has
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been negotiated and executed in the State of New
York and shall be governed by and construed in
accordance with the laws of the State of New York.
h. Singular and Plural. Any singular
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word or term herein shall also be read as in the
plural whenever the sense of this contract may
require it.
i. No Waiver. The failure of Seller or
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Purchaser to seek redress for violation of, or
to insist on the strict performance of, any
term, covenant or condition of this Agreement,
shall not be deemed a waiver of any such party's
rights hereunder nor prevent a similar
subsequent act from constituting a default under
this Agreement.
j. Counterparts. This Agreement may be
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executed in any number of counterparts, each of
which shall be deemed to be an original, but all
of which together shall constitute one and the
same instrument.
k. Expenses. Each of the Purchaser and
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the Seller shall pay its respective legal,
accounting and other fees in connection with
this Agreement, including expenses incurred in
connection with the purchase of the real property.
l. Assignment. This Agreement may not be
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assigned by the Purchaser without the prior
written consent of the Seller, which consent
shall not be unreasonably withheld, except That
Purchaser may assign this agreement to a limited
liability company in which he maintains a
controlling interest.
m. Merger. Seller is not liable or bound
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in any manner by express or implied warranties,
guaranties, promises, statements,
representations or information pertaining to the
Premises, made or furnished by any agent,
employee, servant, or other person representing
or purporting to represent the Seller, unless
such warranties, guaranties, promises,
statements, representations or information are
expressly and specifically set forth herein. It
is understood and agreed that all understandings
and Agreements heretofore had between the
parties hereto are merged in this Contract,
which alone fully and completely expresses their
Agreement, and that the same is entered into
after full investigation, neither party relying
upon any statement or representation, not
embodied in this Contract, made by the other.
n. Execution of Contract. It is
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specifically understood that no offer to sell
the Premises is made by the preparation or
delivery of this contract to the Purchaser or
Purchaser's attorney, but the same shall be
deemed an invitation of an offer to purchase on
the terms therein contained without any
unauthorized changes. It is further understood
that pending the acceptance by Seller of
Purchaser's offer by execution and delivery of
this contract to Purchaser's attorney, neither
party shall be bound hereby, and Seller shall be
free to continue to list the premises for sale,
and entertain offers from other prospective
purchasers.
SELLER'S 27. Seller represents and warrants the
REPRESEN- following are true and correct as of the date of
TATIONS this Contract and shall be true and correct at the Closing.
a. Seller is a corporation duly
organized, validly existing and in good standing
under the laws of the State of New York and has
all necessary power, corporate and otherwise, to
execute and deliver this Contract and to perform
all obligations hereunder, and that this
Contract and any other documents delivered in
connection herewith have been duly authorized by
all requisite action on its part, and that this
Contract is valid and legally binding on Seller.
b. There is no litigation or proceeding
pending which would prevent Seller from
complying with any of its obligations under this
Contract.
c. The use being made of the Premises at
the present time is in conformity with the
certificate of occupancy, if any, issued for the
Premises.
d. The Seller is the sole owner of the
Premises, and has full power, authority and
right to execute, deliver and perform this
Contract. In addition, Seller has not granted
any right of first refusal or option to purchase
the Premises to any person or entity.
e. There are no pending proceedings for
the taking of all or any portion of the Premises
by condemnation or eminent domain, and, to the
best of Seller's knowledge, there are no legal
actions or proceedings affecting the Premises.
f. Seller has not made any commitment to
or agreement with the municipality, county,
state or federal governments which would require
Buyer to install any future improvements
affecting the Premises. No governmental
authority has requested that Seller make any
repairs, modifications, alterations or changes
to the Premises in order to comply with the
requirements of law.
g. Seller has no knowledge of any
incinerator, boiler of other burning equipment
on the Premises being operated in violation of
to any applicable law. Copies of the
certificates of operation for said equipment, if
any, will be delivered to Buyer's attorneys at
the Closing.
h. To the best of Seller's knowledge,
there are no legal actions or proceedings
affecting the Premises except as set forth
herein.
i. To the best of Seller's actual
knowledge, Seller has not done anything to
create a toxic waste, hazard or other
environmental problem at the Premises.
j. To the best of Seller's actual
knowledge, no demand has been made by any
insurance company insuring the Seller requiring
any work to be performed at the Premises in
order to keep or obtain liability insurance.
1031 28. Purchaser and Seller agree that, at
EXCHANGE: Purchaser's election, this transaction shall be
structured as an exchange of like-kind
properties under Section 1031 of the Internal
Revenue Code of 1986, as amended (the "Code"),
and the regulations and proposed regulations
thereunder. The parties agree that if Purchaser
wishes to make such election, it must do so
prior to the Closing Date. If Purchaser so
elects, the Seller shall reasonably cooperate,
provided any such exchange is consummated
pursuant to an agreement that is mutually and
reasonably acceptable to Purchaser and Seller
and which shall be executed and delivered on or
before the Closing Date, and both parties agree
to take all reasonable actions necessary to
timely comply with provisions of the Code to
accomplish such exchange, provided, however,
that such actions shall not materially increase
either party rights or obligations as
specifically provided for in this Agreement.
The Purchaser, as the electing party, shall in
all events, be responsible for all costs and
expenses related to the Section 1031 exchange
and shall fully indemnify, defend and hold the
other harmless from and against any and all
liability, claims, damages, expenses (including
reasonable attorneys' and paralegal fees and
reasonable attorneys' and paralegal fees on
appeal), proceedings and causes of action of any
kind or nature whatsoever arising out of,
connected with or in any manner related to such
1031 exchange that would not have otherwise been
incurred by the Seller if. The provisions of
this paragraph shall survive delivery of the Deed.
CASUALTY; 29. (a) Except as otherwise provided herein,
RISK OF all risk of loss prior to Closing is assumed by
LOSS: Seller, but without any obligation or liability
on the part of Seller to repair any damage or
restore the Premises or its contents. If Seller
elects to repair or replace any loss or damage,
which Seller shall elect within Thirty (30) days
after any such loss (a failure to notify
Purchaser within such Thirty (30) day period
shall be deemed an election by Seller to repair
the Premises), this Contract shall continue in
full force and effect, and Purchaser shall not
have the right to reject title to the Premises
or receive a credit against, or abatement in,
the Purchase Price, and Seller shall be entitled
to a reasonable period of time (which shall not
exceed Six (6) months from the Closing date set
forth herein to complete such repairs or
replacements. Purchaser shall not be required
to pay the balance of the Purchase Price until
(i) the Premises shall have been substantially
repaired to the best of Seller's ability to its
condition immediately prior to the casualty, and
(ii) the essential services of the Premises
(such as gas, electricity and heat) and a
reasonable means of ingress and egress to the
street have been restored. Any proceeds
received from insurance maintained by or for the
benefit of Seller, or in satisfaction of any
claim or action in connection with such loss,
shall belong entirely to Seller. If such
proceeds are paid to Purchaser, Purchaser shall
promptly upon receipt turn them over to the
Seller. The provisions of this paragraph shall
survive the Closing.
ASSUMPTION 30. Seller and Purchaser acknowledge that
OF EXISTING Purchaser may request that the Existing Mortgage
MORTGAGE: in favor of Xxxxxx United Bank be assigned to
and assumed by Purchaser. Seller agrees to
cooperate with Purchaser in such assignment and
assumption, and Seller shall execute any and all
documents reasonably necessary to accomplish
such assignment and assumption.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have duly executed this agreement as
of the day and date set forth next to their signature, and consent to
the date first above written being the effective date of this agreement.
SELLER:
TOUCHSTONE APPLIED SCIENCE ASSOCIATES, INC.
By: XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
PURCHASER:
XXX XXXXXXXX
---------------------
Name: Xxx Xxxxxxxx
SCHEDULE A
Property Description
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20
