EXHIBIT 10.32
PF 27 (2/79) Standard N.Y.B.T. U. Form 8041 Contract of Sale
CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT -THIS
INSTRUMENT SHOULD BE USED BY LAWYERS ONLY
NOTE: FIRE LOSSES. This form of contract contains no express
provision as to risk of loss by fire or other casualty before
delivery of the deed. Unless express provision is made, the
provisions of Section 5-1311 of the General Obligations Law will
apply. This section also places risk of loss upon purchaser if
title or possession is transferred prior to closing.
THIS AGREEMENT, made the 17th day of December, 1996 between LAKE
GROVE ASSOCIATES CORP., a New York corporation, having an office
at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000,
hereinafter described as the seller, and HOME PROPERTIES OF NEW
YORK, L.P., a New York limited partnership, having an office at
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
hereinafter described as the purchaser,
WITNESSETH, that the seller agrees to sell and convey, and the
purchaser agrees to purchase, all those certain plots, pieces or
parcels of land, with the buildings and improvements thereon
erected, situate, lying and being as described in Schedule A
annexed hereto and made a part hereof,
1. This sale includes all right, title and interest, if any, of
the seller in and to any land lying in the bed of any
street, road or avenue opened or proposed, in front of or
adjoining said premises, to the center line thereof, and all
right, title and interest of the seller in and to any award
made or to be made in lieu thereof and in and to any unpaid
award for damage to said premises by reason of change of
grade of any street; and the seller will execute and deliver
to the purchaser, on closing of title, or thereafter, on
demand, all proper instruments for the conveyance of such
title and the assignment and collection of any such award.
2. [Intentionally Omitted]
3. [Intentionally Omitted]
4. [Intentionally Omitted]
5. [Intentionally Omitted]
6. Said premises are sold and are to be conveyed subject to:
a. Zoning regulations and ordinances of the city, town or
village in which the premises lie which are not violated by
existing structures.
b. Consents by the seller or any former owner of premises
for the erection of any structure or structures on, under or
above any street or streets on which said premises may abut.
c. Encroachments of xxxxxx, areas, cellar steps, trim and
cornices, if any, upon any street or highway.
7. [Intentionally Omitted]
8. [Intentionally Omitted]
9. [Intentionally Omitted]
10. The following are to be apportioned:
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a. Rents as and when collected.
b. [Intentionally Omitted]
c. [Intentionally Omitted\
d. Taxes and sewer rents, if any, on the basis of the
fiscal year for which assessed.
e. Water charges on the basis of the calendar year.
f. Fuel, if any.
11. If the closing of the title shall occur before the tax rate
is fixed, the apportionment of taxes shall be upon the basis
of the tax rate for the next preceding year applied to the
latest assessed valuation.
12. If there be a water meter on the premises, the seller shall
furnish a reading to a date not more than thirty days prior
to the time herein set for closing title, and the unfixed
meter charge and the unfixed sewer rent, if any, based
thereon for the intervening time shall be apportioned on the
basis of such last reading.
13. The deed shall be the usual bargain and sale deed (without
covenant against grantor's acts) (the "Deed") in proper
statutory short form for record and shall be duly executed
and acknowledged so as to convey to the purchaser the fee
simple of the said premises, free of all encumbrances,
except as herein stated, and shall contain the covenant
required by subdivision 5 of Section 13 of the Lien Law.
If the Seller is a corporation, it will deliver to the
purchaser at the time of the delivery of the deed hereunder
a resolution of its Board of Directors authorizing the sale
and delivery of the Deed, and a certificate by the Secretary
or Assistant Secretary of the corporation certifying such
resolution and setting forth facts showing that the
conveyance is in conformity with the requirements of Section
909 of the Business Corporation Law. The Deed in such case
shall contain a recital sufficient to establish compliance
with said section.
14. At the closing of the title, the seller shall deliver to the
purchaser a certified check to the order of the recording
officer of the county in which the deed is to be recorded
for the amount of the documentary stamps to be affixed
thereto in accordance with Article 31 of the Tax Law, and a
certified check to the order of the appropriate officer for
any other tax payable by reason of the delivery of the deed,
and a return, if any be required, duly signed and sworn to
by the seller; and the purchaser also agrees to sign and
swear to the return and to cause the check and the return to
be delivered to the appropriate officers promptly after the
closing of title.
15. [Intentionally Omitted]
16. The seller shall give and the purchaser shall accept a title
such as any reputable title company, a Member of the New
York Board of Title Underwriters, will approve and insure in
accordance with the standard form of title policy approved
by the New York State Insurance Department, subject only to
the matters which Purchaser has agreed to accept title
pursuant to in this Contract.
17. All sums paid on account of this contract, and the
reasonable expenses of the examination of title to said
premises and of the survey, if any, made in connection
therewith are hereby made liens on said premises, but such
liens shall not continue after default by the purchaser
under this contract.
18. [Intentionally Omitted]
19. The amount of any unpaid taxes, assessments, water charges
and sewer rents which the seller is obligated to pay and
discharge, with the interest and penalties thereon to a date
not less than two business days after the date of closing
title, may at the option of the seller be allowed to the
purchaser out of the balance of the purchase price, provided
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official bills therefor with interest and penalties thereon
figured to said date are furnished by the seller at the
closing.
20. If at the date of closing there may be any other liens or
encumbrances which the seller is obligated to pay and
discharge, the seller may use any portion of the balance of
the purchase price to satisfy the same, provided the seller
shall simultaneously either deliver to the purchase at the
closing of title instruments in recordable form and
sufficient to satisfy such liens and encumbrances of record
together with the cost of recording or filing said
instruments; or, provided that the seller has made
arrangements with the title company employed by the
purchaser in advance of closing, seller will deposit with
said company sufficient monies, acceptable to and required
by it to insure obtaining and the recording of such
satisfactions and the issuance of title insurance to the
purchaser either free of any such liens and encumbrances, or
with insurance against enforcement of same out of the
insured premises. The purchaser, if request is made within
a reasonable time prior to the date of closing of title,
agrees to provide at the closing separate certified checks
as requested, aggregating the amount of the balance of the
purchase price, to facilitate the satisfaction of any such
liens or encumbrances. The existence of any such taxes or
other liens and encumbrances shall not be deemed objections
to title if the seller shall comply with the foregoing
requirements.
21. If a search of the title discloses judgments, bankruptcies
or other returns against other persons having names the same
as or similar to that of the seller, the seller will on
request deliver to the purchaser an affidavit showing that
such judgments, bankruptcies or other returns are not
against the seller.
22. [Intentionally Omitted]
23. [Intentionally Omitted]
24. [Intentionally Omitted]
25. [Intentionally Omitted]
26. This agreement may not be changed or terminated orally. The
stipulations aforesaid are to apply to and bind the heirs,
executors, administrators, successors and assigns of the
respective parties.
27. If two or more persons constitute either the seller or the
purchaser, the word "seller" or the word "purchaser" shall
be construed as if it read "sellers" or purchasers" wherever
the sense of this agreement so requires.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto.
SEE RIDER ANNEXED HERETO AND MADE A PART HEREOF.
LAKE GROVE ASSOCIATES CORP.
By: ____________________________
Name: ____________________________
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By: _________________________________
Name: _________________________________
Title: __________________________________
Page 3
ESCROW AGENT:
__________________________________
STATE OF NEW YORK)
COUNTY OF MONROE) ss:
On the 13th day of December, 1996, before me personally came
Xxxxxx Xxxxxxxxx, to me know, who, being by me duly sworn, did
depose and say that he resides at Xx. 0000 Xxxxxxx 00, Xxxxxxx,
Xxx Xxxx 00000; that he is the Chairman of Home Properties of New
York, Inc., general partner of Home Properties of New York, L.P.,
the partnership described in and which executed the foregoing
instrument; that he signed his name by order of the Board of
Directors or said corporation.
_____________________________
Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE) ss:
On the ____ day of December, 1996, before me personally came
Xxxxxx Xxxxxxxxx, to me know, who, being by me duly sworn, did
depose and say that he resides at Xx. 0000 Xxxxxxx 00, Xxxxxxx,
Xxx Xxxx 00000; that he is the Chairman of Home Properties of New
York, Inc., general partner of Home Properties of New York, L.P.,
the partnership described in and which executed the foregoing
instrument; that he signed his name by order of the Board of
Directors or said corporation.
_____________________________
Notary Public
CONTRACT OF SALE
LAKE GROVE ASSOCIATES
TO
HOME PROPERTIES OF NEW YORK, L.P.
PREMISES
Section 016.00
Block 03.00
Lot 011.00 and 012.000
County of Town: Suffolk
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Return by Mail to:
Xxxxx X. Xxxx
Attorney at Law
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
THE OBSERVANCE OF THE FOLLOWING SUGGESTIONS WILL SAVE TIME AND
TROUBLE AT THE CLOSING OF THIS TITLE
The Seller should bring with him all insurance policies and
duplicates, receipted bills for taxes, assessments and water
rates, and any leases, deeds or agreements affecting the
property.
When there is a water meter on the premises, he should order it
read, and bring bills therefor to the closing.
If there are mortgages on the property, he should promptly
arrange to obtain the evidence required under Paragraph 5 of this
contract.
He should furnish to the purchaser a full list of tenants, giving
the names, rent paid by each, and date to which the rent has been
paid.
The Purchaser should be prepared with cash or certified check
drawn to the order of the seller. The check may be certified for
an approximate amount and cash may be provided for the balance of
the settlement.
Page 5
RIDER attached to and forming part of Contract of Sale between
LAKE GROVE ASSOCIATES CORP., Seller, and HOME PROPERTIES OF NEW
YORK, L.P., Purchaser
Premises: District 0208, Section 016.00, Block 03.00, Lots
011.000 and 012.000, County of Suffolk, Town of Brookhaven, State
of New York.
28. The purchase price for the Premises is Nineteen Million
Dollars and 00/100 Dollars ($19,000,000.00), payable by Purchaser
as follows:
(a) One Million Nine Hundred Thousand and 00/100
Dollars ($1,900,000.00) (the "Initial Payment"), by check of
Purchaser, subject to collection, payable to the order of the
Escrow Agent (as hereinafter defined), which shall be held by him
in accordance with the provisions of Paragraph 42 hereof and,
subject to the terms of this Contract, shall be applied on
account of the purchase price at closing, receipt of which is
hereby acknowledged; and
(b) Seventeen Million One Hundred Thousand and no/100
Dollars ($17,100,000.00), representing the balance of the
purchase price, at the closing, by certified or official bank or
teller's check, drawn on a bank which is a member of the New York
Clearing House, or by wire transfer of immediately available
federal funds, payable to the order of Seller, or as Seller shall
direct, or wired to Seller or as Seller shall direct, as the case
may be.
29. Purchaser covenants and agrees that prior to the
closing of title hereunder, Xxxxxxxxx shall in no event take
possession of the Premises or any part thereof.
30. (a) Promptly following the execution of this Contract,
Purchaser shall, at its sole cost and expense, cause title to the
Premises to be examined by any reputable title insurance company
(the "Title Company"), and shall direct the Title Company to
deliver a copy of its title report (the "Title Report") to Seller
or Seller's attorney simultaneously with the delivery of the same
to Purchaser. Xxxxxxxxx agrees that, within fifteen (15) days
after it receives the Title Report but in no event later than
thirty (30) days prior to the date of closing of title hereunder,
Purchaser will furnish to Seller notice of any exceptions to
title to the Premises set forth in the Title Report or otherwise
known to Purchaser which are not exceptions subject to which
Purchaser has agreed to take title pursuant to this Contract.
The failure of Purchaser to give such notice to Seller setting
forth all such claimed title defects within the time period
hereinbefore provided shall constitute a waiver by Purchaser of
all title defects not included in such notice which are set forth
in such Title Report or otherwise known to Purchaser; provided,
however, that delivery of the Title Report by the Title Company
to Seller's attorney by the day specified in the preceding
sentence shall be deemed to be such notice by Purchaser with
respect to all matters set forth in the Title Report which are
not exceptions subject to which Purchaser has agreed to take
title pursuant to this Contract. If, after giving such notice to
Seller, Xxxxxxxxx learns through continuation reports or
otherwise, of any title defects which are not exceptions subject
to which Purchaser has agreed to accept title pursuant to this
Contract, Purchaser shall give notice thereof to Seller promptly
after the date Purchaser learns thereof (a copy of such
continuation report being deemed such notice for purposes of this
sentence), it being agreed that Purchaser's failure to give
notice of any such title defects to Seller as aforesaid shall
constitute a waiver thereof.
(b) If, at the date of closing of title hereunder,
Xxxxxx is unable to convey to Purchaser title to the Premises
subject to and in accordance with the provisions of this
Contract, Seller shall be entitled, upon notice delivered to
Purchaser at or prior to such closing, to a reasonable
adjournment or adjournments of such closing, for not exceeding
ninety (90) days in the aggregate, to enable Seller to convey
such title. If Seller does not so elect to adjourn such closing,
or if at the adjourned date Seller is unable to convey title
subject to and in accordance with the provisions of this
Contract, either party may terminate this Contract by notice
delivered on the date scheduled for such closing or the date to
which such closing may have been so adjourned, in which event
both parties hereto shall promptly direct the Escrow Agent to
return the Deposit (as hereinafter defined) to Purchaser; Seller
shall reimburse Purchaser for the net cost of
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title examination
actually incurred by Purchaser; and this Contract shall thereupon
be deemed canceled, void and of no further effect, and neither
party shall have any obligations of any nature to the other
hereunder or by reason hereof, except that the provisions of
Paragraph 37 hereof shall survive such termination. If Seller
elects to adjourn the closing as hereinbefore provided, this
Contract shall remain in effect for the period or periods of
adjournment, in accordance with its terms. Nothing contained in
this Paragraph or elsewhere in this Contract shall be deemed to
require Seller to take or bring any action or proceeding or any
other steps to remove any defect in or objection to title or to
fulfill any condition or to expend any moneys therefor, nor shall
Purchaser have any right of action against Seller therefor, at
law or in equity; provided, however, that Seller shall
nevertheless have the unqualified obligation to satisfy and
discharge (i) all mortgages and (ii) all other liens and
encumbrances in ascertainable amounts, provided such other liens
and encumbrances may be discharged by payment or bonding and the
aggregate amount thereof does not exceed One Hundred Thousand and
no/100 Dollars ($100,000.00); and that the provisions of this
sentence shall not apply to any defect in or objection to title
willfully and intentionally created by Seller after the date of
execution and delivery of this Contract in order to render title
to the Premises unmarketable.
(c) Notwithstanding any termination of this Contract
by Seller pursuant to subparagraph (b) of this Paragraph,
Purchaser may, within five (5) days following such termination,
accept such title to the Premises as Seller can convey, without
reduction of the purchase price or any credit or allowance on
account thereof and without any claim against Seller; provided,
however, that if, at the time of such termination, there are any
liens and/or encumbrances which Seller is obligated to satisfy
and discharge pursuant to the last sentence of such subparagraph,
Seller shall either bond or satisfy and discharge such liens
and/or encumbrances, or pay to Purchaser, as an adjustment at
closing, the aggregate amount of such liens and encumbrances, but
in no event shall the amount of such adjustment exceed One
Hundred Thousand and no/100 Dollars ($100,000.00). The
acceptance of a Deed to the Premises by Purchaser shall be deemed
to be full performance and discharge of every agreement and
obligation on Seller's part to be performed under this Contract,
except for those, if any, which this Contract specifically
provides shall survive the closing of title hereunder. For
convenience, Seller may omit from the Deed the recital of any or
all of the "subject to" clauses herein contained and/or any other
title exceptions, defects or objections which have been waived or
consented to by Purchaser, but the same shall nevertheless
survive delivery of the Deed.
(d) If the Premises shall, at the time of closing of
title, be subject to any liens, such as judgment liens or the
lien of transfer, inheritance, estate, franchise, license or
other similar taxes, or any encumbrances or other title
exceptions (other than exceptions subject to which Purchaser has
agreed to accept title pursuant to this Contract) which would be
grounds for Purchaser to reject title hereunder, the same shall
not be deemed an objection to title provided that, at the time of
closing, either (a) Seller uses all or a portion of the balance
of the purchase price to satisfy the same and delivers to
Purchaser at the closing of title instruments in recordable form
sufficient to satisfy and discharge of record such liens and
encumbrances together with the cost of recording or filing such
instruments, or (b) the Title Company will issue or bind itself
to issue a policy which will insure Purchaser against collection
thereof from or enforcement thereof against the Premises, such
policy either to be at regular rates or any excess premium to be
paid by Seller. If request is made within a reasonable time
prior to the date of closing of title, Xxxxxxxxx agrees to
provide at the closing of title separate certified or official
bank checks, as requested, aggregating not more than the amount
to be paid by Purchaser to Seller at that date, to facilitate the
satisfaction of any of such liens or other defects, and the
existence of any thereof shall not be deemed defects in or
objections to title if Seller shall comply with the foregoing
requirements.
31. Neither Purchaser's interest under this Contract nor
any part thereof may be assigned by Purchaser or any successor-in-
interest to Purchaser unless (a) Seller shall give its prior
written consent to such assignment, (b) a duplicate original of
the instrument of assignment, shall be delivered to Seller within
five (5) days after the execution thereof but in any event at
least fifteen (15) days prior to the date of closing of title
hereunder, and (c) in and by such instrument of assignment, the
assignee(s) shall assume and agree in writing, expressly for the
benefit of Seller as well as the assignor, to perform or cause to
be performed all obligations on the part of Purchaser under and
in connection with this Contract. Any purported assignment not
complying
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with the foregoing shall be void. No assignment shall
relieve Purchaser from liability for the performance of the
obligations undertaken by Purchaser under this Contract.
32. (a) Subject to the provisions of this Contract, the
closing of title hereunder will take place at the office of Xxxxx
X. Xxxx, Esq., 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxx Xxxx
00000, at 10:00 a.m., on February 3, 1997 (the "Original Closing
Date").
(b) Purchaser shall have the right to one or more
adjournments of the closing of title to a date not later than the
fifteenth (15th) day (or, if such fifteenth (15th) day is a
Saturday, Sunday or legal holiday, the next business day)
following the Original Closing Date, provided that: (i) the
closing of title shall take place at the same location and at the
same time as specified in subparagraph (a) of this Paragraph on
the date to which the closing shall be so adjourned; (ii)
Purchaser shall give written notice of such adjournment to Seller
at least three (3) business days prior to the Original Closing
Date (or any later date to which Purchaser or Seller shall
adjourn the closing); (iii) if Purchaser fails to give notice of
such adjournment to Seller on or before the third (3rd) business
day prior to the Original Closing Date (or such later date),
Purchaser shall be deemed to have waived its rights to adjourn
the closing; and (iv) time shall be of the essence with respect
to Purchaser's obligations under this Contract as of (a) the
Original Closing Date, if Purchaser fails to give such notice of
adjournment to Seller on or before such third (3rd) business day,
or (b) if Purchaser shall give such notice of adjournment to
Seller on or before such third (3rd) business day, the date to
which Purchaser shall have adjourned the date of closing in
accordance with this Paragraph 32 (or any later date to which
Seller shall adjourn the closing). If Purchaser shall adjourn
the closing in accordance with this Paragraph 32, all
apportionments will be computed as of the date to which Purchaser
shall have so adjourned the closing, or as of any later date to
which the closing shall have been adjourned by Seller.
(c) Seller hereby grants to Purchaser and Purchaser's
employees and agents, including any accountants, attorneys,
surveyors or engineers who may be employed by Purchaser, the
right, at Purchaser's sole cost and expense and subject to
subparagraphs (c) and (d) of Paragraph 52 hereof, (i) to enter
upon the Premises for the purposes of making such inspections,
engineer's reports, surveys, maps, contour studies, test borings,
environmental studies and other sub-surface soil tests, (ii) to
review the books and records of the Premises, including but not
limited to the Leases (as hereinafter defined) and the Service
Contracts (as hereinafter defined) and (iii) to make such other
investigations (the activities set forth in clauses (i), (ii) and
(iii) of this sentence being hereinafter referred to collectively
as the "Property Studies"), as may be reasonably necessary in
order for Purchaser to determine whether Purchaser wishes to
purchase the Premises. Seller will provide Purchaser with a
reasonable opportunity to review any such books, records, Leases,
Service Contracts or other documentation relating to the Premises
promptly following a request therefor by Purchaser, and Purchaser
agrees that any information with respect to the Premises or the
operation thereof which Purchaser obtains as a result of the
Property Studies will be kept strictly confidential and not
disclosed to any third parties other than Purchaser's attorneys
or other professional counselors.
(d) If Purchaser, in its sole discretion, shall
conclude from the Property Studies that Purchaser does not wish
to purchase the Premises, Purchaser shall have the right to
terminate this Contract by giving notice of such termination (the
"Termination Notice") to Seller on or before the forty-fifth
(45th) day next following the date of this Contract (the
"Contingency Date"), time being of the essence with respect to
the giving of the Termination Notice by Purchaser on or before
the Contingency Date. Upon the giving of the Termination Notice
on or before the Contingency Date, this Contract shall wholly
cease and terminate, and neither party shall have any further
obligation to the other by reason hereof, except that both
parties shall promptly direct the Escrow Agent to deliver the
Deposit to Purchaser. If Purchaser does not give Seller the
Termination Notice on or before the Contingency Date, this
Contract shall remain in full force and effect; Purchaser's
obligations hereunder to purchase the Premises and pay the
purchase price therefor in accordance with this Contract shall be
and become unconditional as of the Contingency Date, except as
otherwise expressly provided in this Contract; and Purchaser
shall be deemed to have waived as of the Contingency Date any
objections under this Contract with respect to the use to which
the Premises may be put.
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(e) Purchaser, for itself, its agents, employees and
contractors, hereby assumes all responsibility and risk in
entering upon the Premises and performing the Property Studies,
and Purchaser hereby agrees to indemnify and hold Seller harmless
from and against any liability, expense, loss, cost or damage,
including attorney's fees, arising out of or in connection with
Purchaser's entry upon or use of the Premises prior to the
closing of title for the purpose of making of the Property
Studies.
(f) Purchaser acknowledges and agrees that its
obligations to indemnify Seller under the provisions of this
Paragraph 32 shall survive the closing of title hereunder, and
that, notwithstanding anything contained in this Paragraph 32 or
the entry of Purchaser in the Premises for the purpose of making
the Property Studies, Purchaser shall in no event be deemed a
vendee in possession of the Premises.
(g) Purchaser shall have the right to accelerate the
closing of title to a date (an "Early Closing Date") earlier than
the Original Closing Date, by giving notice of such acceleration
to Seller not later than the fifteenth (15th) day before the
Early Closing Date, in which event the Early Closing Date shall
be deemed, for all purposes of this Contract, to be the Original
Closing Date.
33. This Contract may be executed in any number of
counterparts, each of which may be signed by either of the
parties and shall for all purposes be deemed to be an original,
and all of which together shall constitute but one and the same
agreement.
34. The parties hereto agree that neither this Contract nor
any memorandum or short form thereof shall be recorded or
tendered for recording in any land record office relating to the
Premises. Purchaser further agrees that the recording of this
Contract or any memorandum or short form thereof, by or at the
instance of Purchaser shall constitute, at Seller's election, a
default by Purchaser hereunder. Upon Seller's giving notice of
such default to Purchaser, this Contract shall terminate and be
of no further force and effect, and the recording of such notice
shall be deemed sufficient and adequate notice to third parties
that this Contract is void and of no further force and effect.
35. If any provisions of this Rider conflict with the
printed provisions of this Contract, the provisions of this Rider
shall control.
36. All notices, demands, requests, consents or other
communications ("Notices") which either party may give or be
required to give to the other hereunder shall be in writing and
shall be: (a) delivered by hand; or (b) sent by registered or
certified mail, return receipt requested, postage prepaid; or (c)
sent by reputable overnight courier service, such as Federal
Express; or (d) transmitted by legible facsimile (with answer
back confirmation); in any event addressed to the parties at
their respective addresses first above set forth. A copy of any
Notice given by Purchaser to Seller prior to the date of closing
of title hereunder shall simultaneously be given in the same
manner to Seller's attorney, Xxxxx X. Xxxx, Esq., 000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxx Xxxx 00000; and a copy of
any Notice given by Seller to Purchaser prior to said date shall
simultaneously be given in the same manner to Purchaser's
attorney, Xxx X. XxXxxxxxx, Esq., 000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxx 14604. Notices given in the manner aforesaid shall be
deemed to have been given (i) on the day so delivered by hand;
or (ii) five (5) business days after the day mailed, if sent by
registered or certified mail, return receipt requested; or (iii)
the first (1st) business day after the date of deposit, if sent
by reputable overnight courier service; or (iv) the date of
transmission with confirmed answer back, if transmitted by
facsimile. Either party may change its address for the receipt
of Notices by giving Xxxxxx to the other party in any manner
aforesaid.
37. Each of Purchaser and Seller warrants and represents
the other that it did not deal with any broker, finder or similar
agent or party who or which might be entitled to a commission or
compensation on account of introducing the parties, the
negotiation or execution of this Contract and/or the closing of
the transaction provided for herein other than Prime Sites Ltd.,
as broker, whose commission shall be paid by Purchaser pursuant
to a separate agreement, and Magnum Realty Corp., as finder,
whose fee shall be paid by Seller pursuant to a separate
agreement. Xxxxxxxxx agrees to indemnify and hold Seller
harmless from and against all loss, liability,
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damage and expense
(including, without limitation, reasonable attorneys' fees)
imposed upon or incurred by Seller by reason of any claim for
commissions or other compensation for bringing about this
transaction by Prime Sites Ltd. or any other broker, finder
(other than Magnum Realty Corp.) or similar agent or party who
claims to have dealt with Purchaser in connection with this
transaction; and Seller agrees to indemnify and hold Purchaser
harmless from and against all loss, liability, damage and expense
(including, without limitation, reasonable attorneys' fees)
imposed upon or incurred by Purchaser by reason of any claim for
commissions or other compensation for bringing about this
transaction by Magnum Realty Corp. The provisions of this
Paragraph 37 shall survive the closing of title hereunder or any
termination of this Contract.
38. Seller represents and warrants to Purchaser that Seller
is not a "foreign person", as such term is defined in the
Internal Revenue Code of 1986, as amended (the "Code"). Seller
shall deliver to Purchaser at the closing or on such earlier date
as may be required pursuant to the applicable regulations
promulgated by the Internal Revenue Service ("IRS"), an affidavit
of an officer of Seller, sworn to under penalties of perjury,
setting forth the Seller's tax identification number, and stating
that the Seller is not a "foreign person", as such term is
defined in the Code. If required pursuant to applicable
regulations promulgated under the Code, Purchaser may furnish a
copy of the affidavit delivered by Seller to the IRS or other
agency designated for receipt of such affidavit.
39. [Intentionally omitted]
40. The submission of this Contract by Seller to Purchaser
shall not be deemed an offer to sell. The obligations of the
parties hereto shall not be binding until a fully executed
original of this Contract, signed by both parties, has been
delivered and the Deposit required hereunder has been delivered
to the Escrow Agent.
41. The parties hereto understand that the Premises are
unique and that if Purchaser defaults in the performance of any
of the terms of this Contract, Seller's damages would be
uncertain and difficult to ascertain. Accordingly, if Purchaser
defaults in the performance of any of the terms of this Contract,
then Seller shall be entitled to retain the Deposit as liquidated
damages for such default, and Seller and Purchaser shall be
released and relieved from any further liability hereunder. The
amount so retained by Seller shall in no event be considered a
penalty.
42. (a) The Initial Payment, together with any interest
earned thereon (the "Deposit"), shall be paid to and held in
escrow by Seller's attorney, XXXXX X. XXXX, Esq. (the "Escrow
Agent"). Simultaneously with the closing of title, the Escrow
Agent shall deliver the Deposit to Seller. Subject to the
provisions of subparagraphs (c) and (d), if the Escrow Agent
receives notice from Seller that Purchaser has defaulted in any
way in its obligations under this Contract, the Escrow Agent
shall deliver or mail the Deposit to Seller fifteen (15) days
after delivering a copy of such notice to Purchaser; and, in the
event that the Escrow Agent receives notice from Purchaser that
Purchaser is entitled under the terms of this Contract to the
return of the Deposit, the Escrow Agent shall deliver or mail the
Deposit to Purchaser fifteen (15) days after delivering a copy of
such notice to Seller.
(b) Any Notice to the Escrow Agent shall be sufficient
only if received by the Escrow Agent within the applicable time
period set forth herein, if any. Notices to the Escrow Agent
shall be delivered to him at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxx,
Xxx Xxxx 00000 in the manner specified in Paragraph 36 hereof.
(c) Upon receipt of a demand for the Deposit made by
Purchaser or Seller pursuant to paragraph (a) hereof and in
accordance with paragraph (b) hereof, the Escrow Agent shall
promptly deliver a copy thereof to the other party in the manner
specified in Paragraph 36 hereof. The other party shall have the
right to object to the delivery of the Deposit by delivery to and
receipt by the Escrow Agent of notice of objection within twelve
(12) days after the date of the Escrow Agent's delivery of such
copy to the other party, but not thereafter. Such notice of
objection may be signed by the attorney for Seller or Purchaser,
as the case may be. Upon receipt of such notice of objection,
the Escrow Agent shall promptly deliver a copy thereof to the
party who made the demand in the manner specified in Paragraph 36
hereof.
Page 10
(d) In the event that (i) the Escrow Agent shall have
received a notice of objection as provided for in subparagraph
(c) hereof within the time therein prescribed, or (ii) any other
disagreement or dispute shall arise between or among any of the
parties hereto and/or any other persons resulting in adverse
claims and demands being made for the Deposit, whether or not
litigation has been instituted, then and in any such event, the
Escrow Agent shall refuse to comply with any claims or demands on
it and continue to hold the Deposit until the Escrow Agent has
received either (A) a Notice signed by both Seller and Purchaser
directing the delivery of the Deposit, or (B) a final order of a
Court of competent jurisdiction, entered in a proceeding in which
Seller and Purchaser are parties, directing the delivery of the
Deposit, in either of which events, the Escrow Agent shall then
deliver the Deposit in accordance with said direction. The
Escrow Agent shall not be or become liable in any way or to any
person for its refusal to comply with any such claims or demands
until and unless it has received a direction of the nature
described in (A) or (B) hereof. Upon delivery of the Deposit by
the Escrow Agent, as provided in this subparagraph (d), the
Escrow Agent shall be released of and from all liability
hereunder except for any gross negligence or willful misconduct.
Notwithstanding the foregoing provisions of this subparagraph
(d), the Escrow Agent shall have the following rights in the
circumstances described in (i) and (ii) above:
(x) If the Escrow Agent shall have received a Notice
signed by either Seller or Purchaser advising that a litigation
between Seller and Purchaser over entitlement to the Deposit has
been commenced, the Escrow Agent may, on notice to Seller and
Purchaser, deposit the Deposit with the Clerk of the Court in
which said litigation is pending after paying from the Deposit
all court costs relating to such deposit;
(y) The Escrow Agent may, on notice to Seller and
Purchaser, take such affirmative steps as it may, at its option,
elect in order to terminate its duties as the Escrow Agent,
including, without limitation, the deposit of the Deposit with a
court of competent jurisdiction and the commencement of an action
for interpleader, the costs thereof to be borne by whichever of
Seller or Purchaser is the losing party; and
(z) Upon the taking by the Escrow Agent of either of
the actions described in (x) or (y) above, the Escrow Agent shall
be released of and from all liability hereunder except for any
gross negligence or willful misconduct.
(e) The Escrow Agent shall not be responsible in any
manner for the validity or sufficiency of any cash, instruments,
or any other property delivered to it hereunder, or for the value
or collectibility of any check or other instrument so delivered,
or for any representation made or obligations assumed by any
other party to this agreement. Nothing contained herein shall be
deemed to obligate the Escrow Agent to deliver any cash,
instrument, or other property referred to herein unless the same
shall have first been received by the Escrow Agent pursuant to
this Contract. The Escrow Agent shall have the right to act in
reliance upon any document, instrument or signature believed by
him to be genuine and to assume that any person purporting to
give any notice or instructions in accordance with the provisions
hereof have been duly authorized to do so. The Escrow Agent
shall not be liable for any action taken or omitted hereunder
except in the case of his gross negligence or willful misconduct.
(f) The Escrow Agent shall not be bound by any
modification, cancellation or rescission of this Contract unless
the same is in writing and signed by the other parties hereto and
a copy thereof has been received by the Escrow Agent. In no
event, however, shall any modification of this Contract which
shall affect the rights or duties of the Escrow Agent be binding
on the Escrow Agent unless the Escrow Agent shall have given his
prior written consent. The Escrow Agent has executed this
Contract solely to confirm that he is holding the Deposit in
escrow pursuant to the provisions of this Paragraph and for no
other purpose.
(g) If there shall be any dispute between Xxxxxx and
Purchaser with respect to the Deposit or any other matter arising
out of this Contract, Xxxxxxxxx agrees that the Escrow Agent may
represent Seller notwithstanding that the Escrow Agent is
simultaneously acting as escrow agent hereunder.
Page 11
(h) The Deposit shall be invested by the Escrow Agent in
U.S. government securities, FDIC-insured certificates of deposit
or an FDIC-insured interest-bearing money market or bank account,
but the Escrow Agent shall not be liable for any reasonable delay
in investing, reinvesting or distributing the Deposit or for any
loss incurred by reason of any such investments. If the closing
occurs, any interest earned or accrued on the Deposit shall be
paid to Seller. If the closing does not occur, then all interest
earned on the Deposit shall be paid to the party entitled to
receive the Deposit.
(i) Seller and Purchaser hereby agree jointly and
severally to indemnify and hold the Escrow Agent harmless from
any damage, cost, liability or expense (including, but not
limited to, legal fees either paid to retained attorneys or
representing the fair value of legal services rendered by the
Escrow Agent) which the Escrow Agent may incur by reason of his
acting hereunder, without prejudice to any right either party may
have to recover from the other party for any such damage, cost,
liability or expense; it being expressly acknowledged by the
parties hereto that the foregoing indemnity shall apply to such
legal fees and expenses incurred by the Escrow Agent in defending
an action brought by either party hereto alleging misconduct or
negligence by the Escrow Agent; unless there is a final
determination by a court of law that the Escrow Agent was grossly
negligent or engaged in intentional acts of misconduct.
43. 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 understandings, and that the same is entered into after
full investigation, neither party relying upon any express or
implied statement, representation, warranty, guarantee, promise,
"setups" or information not embodied in this Contract, made by
the other, or by any real estate broker, agent, employee, servant
or other person representing or purporting to represent Seller.
Subject to the provisions of subparagraphs (c) and (d) of
Paragraph 32 hereof, Purchaser represents that it has inspected,
examined and investigated the Premises and the fixtures,
equipment, machinery and personal property, if any, therein and
is familiar with the physical condition thereof, that it has
independently investigated, analyzed and appraised the value and
profitability thereof, that it has reviewed all Leases, or has
been given full opportunity to review all Leases, that it is
thoroughly acquainted with all of the foregoing, that it agrees
to accept the Premises and such fixtures, equipment, machinery
and personal property "as is", in their condition as of the date
hereof, subject to reasonable use, wear, tear and natural
deterioration to and including the date of the closing, subject
to the provisions of Paragraph 45 hereof, without any liability
or responsibility on the part of Seller for any condition caused
by tenants at the Premises after the date hereof. Seller has not
made and does not make any representations as to the physical
condition, expenses, income, operation, rent roll or any other
matter or thing affecting or relating to the Premises, except as
herein specifically set forth. Purchaser hereby expressly
acknowledges that all representations and warranties which Seller
has made, and upon which Purchaser relied in entering into this
Contract, have been included in this Contract.
Without limiting the generality of the foregoing, the
Purchaser has not relied on any representations or warranties,
and Seller has not made any representations or warranties, in
either case express or implied, as to (i) the current or future
real estate tax liability, assessment or valuation of the
Premises; (ii) the potential qualification of the Premises for
any and all benefits conferred by federal, state or municipal
laws, whether for subsidies, special real estate tax treatment,
insurance, mortgages, or any other benefits, whether similar or
dissimilar to those enumerated; (iii) the compliance of the
Premises, in its current or any future state with applicable
zoning ordinances and the ability to obtain a variance in respect
to the Premises' non-compliance, if any, with said zoning
ordinances; (iv) the availability of any financing for the
purchase, alteration, rehabilitation or operation of the Premises
from any source, including but not limited to State, City or
Federal government or any institutional lender; (v) the current
or future use of the Premises, including but not limited to the
use of the Premises, including but not limited to the use of the
Premises for residential (including cooperative or condominium
use) or commercial purposes; (vi) the presence or absence of any
rules or notices of violations of law issued by any governmental
authority; and (vii) the topography area, contour, soil
conditions or any other aspects of the physical condition of the
Premises. The Seller is not liable or bound in any manner by any
verbal or written statements, representations, real estate
brokers' "set-ups" or information pertaining to the Premises, the
uses to which the Premises may be put or the physical condition
thereof
Page 12
furnished by any real estate broker, agent, employee, or
other person, unless the same are specifically set forth herein.
44. The Premises are also being sold and are to be conveyed
subject to:
(a) Any state of facts an accurate current survey or
inspection of the Premises would show, provided the same does not
materially impair the marketability of the Premises;
(b) Any covenants, restrictions, easements,
agreements, consents or reservations of record, if any, not
violated by the existing structures on the Premises or the
current use thereof;
(c) All current zoning, building, environmental and
other laws, ordinances, codes, restrictions and regulations of
all governmental authorities having or claiming jurisdiction with
respect to the Premises or the use or improvement thereof and all
zoning variances and special exceptions relating thereto, if any,
not violated by the existing structures on the Premises or the
current use thereof, and all future such zoning, building,
environmental and other laws, ordinances, codes, restrictions,
regulations, zoning variances and special exceptions;
(d) Any and all violations of law, ordinances, orders
or requirements noted of record by any municipal, state or other
governmental authority having or claiming jurisdiction, which may
affect the Premises on, before or after the date of this
Contract, if any, whether or not noted on, before or after the
date hereof;
(e) Encroachments of xxxxxx, areas, flagpoles, roof
cornices, wheel guards, stone bases, leaders, gutters, window
trims, vent pipes, signs, piers, lintels, window xxxxx, fire
escapes, ledges, fences, coping, ladders and retaining bulkhead
or yard walls, if any, upon any street or highway or adjoining
property and encroachments of such elements projecting from
adjoining property over or upon the Premises, if any;
(f) All rights, easements and agreements, whether or
not of record, for the erection and/or maintenance of water, gas,
steam, electric, telephone, sewer or other utility pipelines,
poles, wires, conduits, cable boxes, holes, drains or other like
facilities, fixtures, equipment and installations in, on, across
or under the Premises, if any;
(g) Possible lack or revocable nature of the right, if
any, of the owner of the Premises to maintain or use any spaces,
facilities or appurtenances outside the building lines, whether
on, over or under the ground, including, without limitation, all
vaults, vault lights, marquees, signs, coal chutes, sub-surface
equipment and sidewalk openings, if any;
(h) Minor variations, if any, between tax lot lines,
fences, walls, shrubs, trees or driveway surfaces, and record
lines of title;
(i) All currently existing and future liens against
the Premises for unpaid real estate taxes, vault charges, if any,
assessments and water and sewer charges and rents not due and
payable as of the date of the closing of title hereunder, subject
to adjustment as provided in this Contract;
(j) The liability of Seller or any corporate
predecessor of Seller for New York State Franchise Taxes and the
lien thereof, subject to the provisions of Paragraph 30(d)
hereof;
(k) Rights of tenants and other occupants of the
Premises ("Tenants") under, and all terms and conditions of, all
leases, subleases and other occupancy agreements of any space in
or on the Premises in effect at the date hereof and at the date
of the closing of title hereunder, whether or not of record, and
all renewals, replacements and amendments thereof (hereinafter
referred to collectively as "Leases"), provided, however, that
nothing contained in this clause (k) shall be deemed to modify in
any respect any other provision of this Contract relating to the
Tenants or Leases, or to constitute a representation by Seller
that all or any such Leases will be in effect at the date of
closing;
Page 13
(l) Any financing statements, if any, on or with
respect to personality filed more than five (5) years prior to
the date of the closing and not renewed, or entered into by or
arising from the acts of any tenant at the Premises; and
(o) The effect of all current or future laws of the
United States and the State of New York and any other
governmental regulations relating to the rights and obligations
of the Tenants under the Leases and the permissible rents which
may be charged to or collected from them.
45. (a) Seller agrees to give Purchaser reasonably prompt
notice of any fire or other casualty occurring at the Premises
between the date hereof and the date of closing, or of any actual
or threatened condemnation of all or any part of the Premises of
which Seller has knowledge.
(b) If prior to the closing there shall occur (i)
damage to the Premises caused by fire or other casualty the
reasonably estimated cost to repair of which is One Hundred
Thousand and no/100 Dollars ($100,000.00) or more, or (ii) a
taking by condemnation of any material portion of the Premises,
then, in either such event, Seller or Purchaser may terminate
this Contract by notice given to the other within seven (7) days
after Seller has given Purchaser the notice referred to in
Paragraph 45(a), or at the closing, whichever is earlier, in
which event the respective obligations of Seller and Purchaser
shall be the same as set forth in Paragraph 30(b) in the event
this Contract is terminated as the result of title being
unmarketable; provided, however, that if Seller shall so
terminate this Contract, Purchaser may nevertheless elect to
accept title to the Premises in "as is" condition as of the date
of such termination, by giving notice of such election to Seller
within three (3) days after such termination. If neither party
shall so terminate this Contract, or if Seller so terminates this
Contract and Purchaser elects to accept title to the Premises
pursuant to the preceding sentence, then the closing shall take
place as herein provided, without abatement or reduction of the
purchase price, and Seller shall assign to Purchaser at the
closing, by written instrument, expressly made without warranty
or representation by or recourse to Seller, all of Seller's
interest in and to any insurance proceeds or condemnation awards
which may be payable to Seller on account of any such fire,
casualty or condemnation, less any amount thereof theretofore
expended for or required to reimburse Seller for the cost of any
restoration made by or on behalf of Seller; and if Seller has so
terminated this Contract and Purchaser has nevertheless so
elected to accept title to the Premises, Seller shall pay to
Purchaser, as an adjustment at closing, an amount equal to the
applicable deductible amount, if any, under Seller's fire or
casualty insurance.
(c) If, prior to the closing, there shall occur (i)
damage to the Premises caused by fire or other casualty the
reasonably estimated cost to repair of which is less than One
Hundred Thousand and no/100 Dollars ($100,000.00) or (ii) a
taking by condemnation of any part of the Premises which is not
material, then, in either such event, neither party shall have
the right to terminate this Contract by reason thereof, and the
obligations of Seller and Purchaser under this Contract shall
remain in full force and effect; provided however, that at
closing (i) Purchaser shall accept the Premises in its damaged or
"as is" condition as of such date and/or subject to such taking,
as the case may be, and (ii) Seller shall assign to Purchaser, by
written instrument expressly made without representation or
warranty by or recourse to Seller all of Seller's interest in any
insurance proceeds or condemnation awards which may be payable to
Seller on account of any such fire, casualty or condemnation, in
each case less any amount thereof theretofore expended or
required to reimburse Seller for the cost of any protective
restoration made by or on behalf of Seller. Notwithstanding the
foregoing, in the event of any such damage caused by fire or
other casualty, Seller shall pay to Purchaser, as an adjustment
at closing, an amount equal to the lesser of (x) such reasonably
estimated cost of repair or (y) the applicable deductible amount,
if any, under Seller's fire or casualty insurance, unless, prior
to closing, Seller shall have repaired and restored the Premises
at its sole cost and expense (in which case, Seller shall be
entitled to retain any and all insurance proceeds).
(d) For purposes of this Paragraph, a taking of a
material part of the Premises shall mean any taking which leaves
remaining a balance of the Premises which may not be economically
operated for the purpose for which the Premises were operated
prior to such taking, and shall include any permanent taking
which results in a diminution of the aggregate of the gross rents
payable under all Leases at the Premises by more than twenty
percent (20%), and any
Page 14
taking which necessitates repairs or
restoration having a reasonably estimated cost of One Hundred
Thousand no/100 Dollars ($100,000.00).
(e) Whenever, as a result of an assignment by Seller
of insurance proceeds pursuant to this Paragraph, Purchaser shall
be entitled to file a claim with or collect proceeds from
Seller's insurer, Seller agrees to cooperate fully and promptly
with Purchaser in connection therewith, to provide such
information as Purchaser may reasonably request relating thereto
and to execute promptly such drafts, checks, claims, releases,
acquittances and the like as may be required by such insurer or
as may be reasonably requested by Purchaser with respect thereto;
and the obligations of Seller pursuant to this subparagraph (e)
shall survive the closing.
(f) The parties agree that the foregoing provisions of
this Paragraph 45 shall apply to this Contract in lieu of the
provisions of Section 5-1311 of the General Obligations Law of
the State of New York.
46. Seller is hereby authorized by Purchaser to continue
any proceeding or proceedings pending for the reduction of the
assessed valuation of the Premises as of the date of closing of
title hereunder, and to try or settle the same in Seller's
discretion, provided, however, that the refund of taxes, if any,
for any tax year which is the subject of such a proceeding and
for part of which Purchaser owns the Premises shall be divided
between Seller and Purchaser in the same ratio as the ratio of
the number of days in such tax year during which the Premises
were owned by Seller to the number of days in such tax year
during which the Premises were owned by Purchaser, after
deducting from such refund all expenses, including counsel fees,
incurred by Seller in obtaining such refund. Purchaser shall
deliver to Seller, upon demand, receipted tax bills and canceled
checks used in payment of such taxes and shall execute any and
all consents or other documents, and do any act or thing
necessary for the collection of such refund by Seller. Any
refunds due for periods prior to Purchaser's ownership shall
remain the property of Seller. The provisions of this Paragraph
shall survive the closing of title hereunder.
47. Purchaser acknowledges being advised by Seller that the
sewage treatment plant (the "Sewer Plant") at the Premises is
being upgraded in accordance with environmental requirements
pursuant to SPDES Permit No. 0079499 (STP-89-01) issued by the
Suffolk County Department of Health Services ("SCDOHS") and an
SCDOHS Order of Consent No. UPG-89-01A dated October 26, 1992, as
amended, and that Seller anticipates such upgrading will be
completed before the Original Closing Date. At the closing of
title (or as soon thereafter as possible, if any required
governmental consents or approvals have not yet then been
obtained), Seller shall transfer and assign, without
representation or warranty, express or implied, all of Seller's
right, title and interest in and to the Sewer Plant (including,
but not limited to, any existing licenses and/or permits
necessary for the operation or maintenance thereof and any
contractor's or manufacturer's obligations under any construction
contracts and guarantees with respect thereto, if any) to
Purchaser, and Purchaser shall assume all of Seller's obligations
with respect to the Sewer Plant (including, but not limited to,
Seller's obligations under the terms of any such construction
contracts, licenses and permits, but not including Seller's
obligations to pay for any labor or materials performed or
purchased with respect to the Sewer Plant prior to the date of
closing ("Seller's Pre-Existing Obligations"), it being expressly
agreed that Purchaser shall not be responsible for the cost of
labor and/or materials incurred by Seller prior to the closing of
title hereunder), from and after the date of closing. In
connection with such assumption, Purchaser shall reimburse Seller
at closing for any deposits made by Seller in order to obtain any
such licenses or permits and, as soon as reasonably practicable
after the date of closing, replace any bonds posted by Seller to
obtain such licenses or franchises with bonds posted by
Purchaser; Purchaser shall be entitled to an adjustment at
closing in an amount equal to Seller's Pre-Existing Obligations,
if any, remaining unpaid as of such date; Purchaser hereby agrees
to indemnify and hold Seller harmless from and against any
liability, expense, loss, cost or damage, including reasonable
attorney's fees, relating to the construction, operation or
maintenance of the Sewer Plant (including Seller's Pre-Existing
Obligations, if any, provided that Purchaser has received an
adjustment with respect thereto at closing; it being expressly
acknowledged and agreed that Seller shall continue to be
responsible for all other Seller's Pre-Existing Obligations) and
the provisions of this subparagraph shall survive the closing of
title hereunder.
Page 15
48. (a) For the purpose of this Contract, the term "net
cost of title examination" or "net charge of title examination"
shall mean the expense actually incurred by Purchaser for title
examination plus the cost of any survey redating actually
obtained or survey inspection actually made.
(b) This Contract contains the entire agreement
between the parties hereto with respect to the subject matter
hereof and supersedes all prior understandings, if any, with
respect thereto, and may not be modified, changed or
supplemented, nor may any obligations hereunder be waived, except
by written instrument signed by the party to be charged or by its
agent duly authorized in writing or as otherwise expressly
permitted herein. The parties do not intend to confer any
benefit hereunder on any person, firm or corporation other than
the parties hereto, their successors and assigns. The provisions
of this Paragraph shall survive the closing of title hereunder.
(c) No waiver of any breach of any agreement or
provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof or of any other agreement
or provision herein contained. No extension of time for
performance of any obligations or acts shall be deemed an
extension of the time for performance of any other obligations or
acts.
(d) All sums paid on account of this Contract and the
net cost of title examination, if any, made in connection
therewith are hereby made liens on the Premises, but such liens
shall not continue after default by the Purchaser under this
Contract or termination of this Contract pursuant to the terms
hereof.
(e) In no event shall Seller be required to accept the
check of a corporation or a partnership unless said corporation
or partnership is the grantee of the Premises, nor shall Seller
be required to accept an endorsed check, unless the endorser is
the payee of the check and the grantee of the Premises.
(f) This Contract shall bind and inure to the benefit
of the parties hereto and their respective successors and,
subject to the provisions of Paragraph 31 hereof, assigns, but
shall not inure to the benefit of or be enforceable by any other
person or entity.
(g) This Contract shall be governed by, interpreted
under and construed and enforced in accordance with, the laws of
the State of New York applicable to contracts made and to be
performed wholly within such State.
(h) Any and all checks received or to be received
hereunder in payment, or part payment, are and shall be deemed
subject to collection.
49. This sale also includes all fixtures and articles of
personal property, if any, which are owned by Seller and are
attached to, appurtenant to or used in connection with the
Premises but only to the extent that such fixtures or articles of
personal property are located at the Premises at the time of
closing. Such personal property as is included in this sale is
sold "as is" and, except as otherwise provided in Paragraph 51
(i) hereof, Seller makes no representation regarding the present
condition or state of title, or the condition or state of title
on the date of closing, of any such fixtures or other articles of
personal property. Seller acknowledges and agrees that the 1988
gray Ford pick-up truck (title and identification number
0XXXX00X0XXX00000) used at the Premises is included in this sale
and shall be deemed "personal property" for the purposes of this
Paragraph; that Seller shall deliver to Purchaser at closing (or
as soon thereafter as reasonably practicable) the certificate of
title with respect to such pick-up truck, completed to effect the
transfer of title thereto to Purchaser; and that the provisions
of this sentence shall survive the closing of title hereunder.
Seller represents and warrants that, prior to the closing of
title hereunder, Seller shall not remove from the Premises any
fixtures or other items of personal property owned by Seller and
used in the operation or maintenance of the Premises, unless such
fixtures or items of personal property are replaced with
reasonably equivalent fixtures or items of personal property.
Page 16
50. Notwithstanding any provision of this Contract to the
contrary, no officer, director or shareholder of Seller shall
have any personal liability under, arising out of or in
connection with this Contract, the transactions contemplated by
this Contract, any default or breach by Seller under this
Contract or the inaccuracy of any representation or warranty set
forth in this Contract, it being expressly agreed by Purchaser
that no such officer, director or shareholder shall be named as a
defendant by Purchaser in any action brought or claim asserted
against Seller relating to this Contract or such transactions,
default, breach or inaccuracy, and that any judgment against
Seller in favor of Purchaser relating to this Contract or such
transactions, default, breach or inaccuracy
shall be levied or collected only against and collectible only
out of corporate assets of Seller, and shall not be levied
against or collectible out of the assets of any such officer,
director or shareholder. The provisions of this Paragraph 50
shall survive the closing of title hereunder.
51. Seller represents and warrants to Purchaser as follows
as of the date of this Contract:
(a) The rent schedule (the "Rent Roll") annexed hereto
and made a part hereof as Schedule B accurately and completely
sets forth the following information with respect to the Tenants
under the Leases as of the dates indicated thereon: (i) the name
of each Tenant and an identification of the unit occupied by such
Tenant; (ii) the monthly rentals (other than arrears) actually
and currently being collected from each Tenant; (iii) the amount
of any security or other deposits made by each Tenant and held by
Seller; and (iv) under the heading "Opening Balance", the amount
of any rent arrears owed by each Tenant as of the date indicated
therein.
(b) No brokerage or leasing commissions are (and, as
of the date of closing, none will be) owed or payable in the
future by Seller with respect to any of the Leases;
(c) The Leases referred to on the Rent Roll constitute
all of the leases, tenancies or occupancies affecting the
Premises on the date hereof, and there are no other agreements
which confer upon any Tenant or any other person or entity any
rights to the possession of any portion of the Premises.
(d) No Tenant has been granted any rent concession or
allowance with respect to rent payable after the date hereof.
(e) Schedule C annexed hereto and made a part hereof
sets forth all of the service and maintenance contracts and union
contracts, if any, affecting the Premises or the operation
thereof (the "Service Contracts").
(f) Schedule D annexed hereto and made a part hereof
sets forth all of the superintendents, porters, handymen and
other similar persons (each, an "Employee" and, collectively,
"Employees") employed by Seller in connection with the operation
of the Premises.
(g) Seller has not received notice from any company
underwriting insurance policies covering the Premises requiring
the performance of any work at the Premises which has not been
completed.
(h) Seller has not transferred any development or air
rights with respect to the Premises or granted to any person or
entity the right to acquire any such rights and, to the best of
Seller's knowledge, no former owner of the Premises transferred
or granted to any person or entity the right to acquire any such
rights (other than to its successor as owner of fee title to the
Premises).
(i) All fixtures and articles of personal property, if
any, included in this conveyance will at the date of closing be
owned by Seller free and clear of any conditional bills of sale,
chattel mortgages, security agreements, financing statements or
other security interests of any kind (except as otherwise
provided in Paragraph 44(l) hereof).
(j) No person or entity has any right or option to
acquire title to the Premises.
(k) Seller has not presented any offering plan to the
Attorney General of the State of New York or the Tenants at the
Premises in connection with the proposed conversion thereof to
Page 17
cooperative or condominium status, and there has not been any
solicitation or market test made with respect to any such
proposed conversion.
None of the representations and warranties set forth in this
Paragraph (and, except as otherwise expressly indicated to the
contrary, none of the representations or warranties, if any, of
Seller set forth elsewhere in this Contract) shall survive the
closing.
52. (a) Seller agrees that from the date hereof until the
date of closing, Seller shall:
(i) operate and maintain the Premises, or cause
the Premises to be operated and maintained, in the ordinary
course of business and in a manner consistent with the practices
and procedures followed by Seller prior to the date hereof,
except to the extent that Seller is precluded from so doing by
acts of God, fire or other casualty, storm, strikes, labor
difficulties, riots, insurrection, inability to obtain materials
or equipment or other similar or dissimilar events or occurrences
beyond the control of Seller;
(ii) cause all fire and extended coverage and
other insurance policies currently in effect with respect to the
Premises (or renewal or replacement policies of like coverage and
like amounts or limits) to be kept in full force and effect
through and including the date of closing;
(iii) not increase the compensation payable to
hourly or salaried Employees, except (x) if Purchaser has given
its prior written consent to such increase, which consent shall
not be unreasonably withheld or delayed, or (y) pursuant to any
contracts in effect at the date hereof or any industry- or
owners' association-wide collective bargaining agreements
becoming effective after the date hereof, or (z) in accordance
with the usual past practice of Seller;
(iv) not engage any new hourly or salaried
employees for employment at the Premises, except as required to
replace existing Employees and any such new employees shall be
employed for compensation not greater than required by any
applicable union contract or, if there is no such applicable
union contract, at such compensation as to which Purchaser shall
have given its prior written consent, which consent shall not be
unreasonably withheld or delayed;
(v) not enter into any Service Contracts (other
than employment agreements or union contracts in accordance with
clauses (iii) and (iv) of this subparagraph (a)) except for (x)
renewals or extensions of existing Service Contracts at the then-
prevailing rates of compensation provided each such renewal or
extension may be canceled by Seller or its successors on not more
than thirty (30) days' prior written notice, or (y) any other
service or maintenance contracts entered into in the ordinary
course of business provided each such contract may be canceled by
Seller or its successors on not more than thirty (30) days' prior
written notice, or (z) any other service or maintenance contracts
to which Purchaser shall have given its prior written consent,
which consent shall not be unreasonably withheld or delayed;
(vi) cause any management agreement with respect
to the Premises, if any, to be terminated on or before the date
of closing; and
(vii) execute and deliver to Purchaser all
written consents or authorizations as may be necessary, in the
reasonable opinion of Purchaser or its counsel, to make a search
of the records of any Federal, State or City agency having
jurisdiction relating to the Premises in order to verify any
warranties or representations made herein by Seller or any
information relating to the Premises or the tenancies thereof
that are set forth in this Contract.
(b) Seller and Purchaser agree that if any apartment
at the Premises is vacant at the date hereof or becomes vacant
after the date hereof and prior to the date of closing, Seller
will not enter into any new lease for such vacant apartment,
unless (i) at a rent not less than the prevailing rent then being
charged for similar apartments at the Premises, and for a term
not longer than two (2) years, or (ii) Purchaser has given its
prior written consent to the terms of such new lease, which
consent Xxxxxxxxx agrees not unreasonably to withhold or delay.
It is also understood and agreed that Seller shall not modify any
existing Lease to reduce the rent payable thereunder or to
shorten the term thereof, after the date hereof and prior to the
date of closing,
Page 18
unless Purchaser has given its prior written
consent to the terms of such modification, renewal or extension,
which consent Purchaser agrees not unreasonably to withhold or
delay; provided however, that nothing contained in this Contract
shall be deemed to prohibit or preclude Seller from (i) renewing
or modifying any existing Lease, if such renewal or modification
is required by applicable law, at such rent and on such terms as
may be required by applicable law, or (ii) instituting summary
proceedings prior to the date of closing against any current
Tenant or future Tenant who has defaulted under its Lease or any
future Lease, and applying and retaining any security which may
have been deposited by such Tenant in accordance with the terms
of such Tenant's Lease, or applicable law (but no such security
shall be so applied and retained unless such Tenant shall have
vacated its apartment). Notwithstanding the foregoing, Purchaser
acknowledges and agrees that: (i) Seller has no obligation to
institute any such proceedings against any Tenant, and has not
made and is not willing to make any representation and assumes no
responsibility with respect to the continued occupancy at the
Premises of any Tenant; (ii) the removal of any Tenant prior to
the closing, whether voluntarily by surrender of possession, by
summary proceedings or otherwise, shall not give rise to any
claim or objection by Purchaser hereunder, or to any abatement or
reduction in the purchase price; and (iii) it will not be an
objection to title that any Tenant at the Premises is a hold-over
tenant or in default under any Lease.
(c) Seller hereby agrees that it shall permit
Purchaser or its designated agents, engineer or appraiser to
enter the Premises at reasonable times for reasonable periods of
time on business days, for the purpose of inspecting the Premises
in order to make any study or record or compilation of data
required by any lending institution or for any like purpose,
provided that (i) Purchaser gives reasonable prior written notice
of such inspection to Seller; (ii) Purchaser or such agents,
engineer or appraiser are accompanied during all such inspections
by a representative of Seller; (iii) such inspection shall not
impede or interfere with the normal business operation of the
Premises; and (iv) such permission shall be subject to the
rights of the Tenants at the Premises under the Leases and
applicable law.
(d) Purchaser covenants and agrees that prior to the
closing, Purchaser (i) shall not contact any Tenant at the
Premises for any reason whatsoever, either directly or indirectly
by correspondence, telephone, telegraph or otherwise, with
respect to the conveyance of the Premises contemplated hereby;
and (ii) shall not issue any publicity or press release relating
to such conveyance of the Premises.
53. (a) At the closing, the following items shall be
apportioned between the parties as of the day next preceding the
closing, in accordance with the customs with respect to title
closings recommended by The Real Estate Board of New York, Inc.
(except where expressly otherwise provided herein):
(i) rents and all other charges paid (including
any prepaid rents) or payable by Tenants at the Premises, as,
when and if collected, subject to the provisions of subparagraphs
(b) and (c) hereof;
(ii) real estate taxes, unmetered water charges
and sewer rents levied or imposed upon the Premises on the basis
of the fiscal or calendar year for which assessed. If the
closing shall occur before a new tax rate is fixed, the
apportionment of taxes shall be on the basis of the tax rate for
the immediately preceding period applied to the latest assessed
valuation, subject to post-closing adjustment in accordance with
subparagraph (f) hereof;
(iii) vault charges, if any;
(iv) charges payable under Service Contracts
assigned to Purchaser, on the basis of the period covered by such
contracts;
(v) electricity, gas and other utility charges to
the extent such charges are not directly metered to and payable
by Tenants, if any, subject, however, to the provisions of
subparagraph (d) hereof; and
Page 19
(vi) such other items, if any, as may be
expressly made the subject of apportionment under any other
provisions of this Contract.
No adjustments or apportionments shall be made between the
parties except as provided in this Paragraph.
(b) If on the date of the closing, there are past due
rents or charges owed by Xxxxxxx and Seller is entitled to all or
part of the same, then Purchaser agrees that with respect to the
then current rentals (i.e., due with respect to the month in
which the closing occurs), the first rentals and monies received
by Purchaser subsequent to the date of the closing from such
Tenants shall be applied: first, to the rent for the month in
which the closing occurs, which payment shall be received in
trust by Purchaser for the account of Seller in payment of such
rents and Seller's share of which, determined in accordance with
Paragraph 53(a) (i) hereof, will be remitted by Purchaser to
Seller forthwith; then, to rents which become due after the date
of closing, which shall be retained by Purchaser; and the
balance, if any, to rents which became due prior to the first day
of the month in which the closing occurs, which shall be remitted
by Purchaser to Seller. Purchaser will make reasonable efforts
(but without any obligation to institute legal proceedings in
connection therewith) to collect past due rents, if any, for the
account of Seller and any such rents, if received, shall be
received in trust by Purchaser for the account of Seller and will
be remitted by Purchaser to Seller forthwith. Any past due rents
not so collected by Purchaser within the period of one hundred
twenty (120) days following the date of the closing shall be
reassigned to Seller so that Seller may pursue such remedies for
collection thereof, for Seller's own account, as Seller may deem
advisable.
(c) If there are any additional rents or charges
(e.g., percentage rent, real estate taxes, insurance, operating
expenses or other such charges) not yet due or payable by Tenants
but attributable in whole or in part to the period prior to the
date of closing, then Purchaser agrees that when the same are
received by Purchaser subsequent to the date of the closing from
such Tenants, the same shall be received in trust by Purchaser
for the account of Seller in payment of such additional rents and
such portion thereof as is attributable to the period prior to
the date of closing will be remitted by Purchaser to Seller
forthwith. Purchaser will make reasonable efforts (but without
any obligation to institute legal proceedings in connection
therewith) to collect such additional rents, if any, for the
account of Seller.
(d) Seller shall cause all water, electricity, gas and
other utility meters to be read on the day preceding the date of
closing, or as close thereto as may be reasonably possible, and
shall pay all bills rendered as a result of such readings. The
cost of such utilities for the period, if any, between the date
of the meter reading and the date of closing shall be adjusted on
the basis of the most recently issued bill therefor. If Seller
does not obtain such a meter reading for any such utility, the
adjustment therefor shall be on the basis of the most recently
issued bill therefor, subject to post-closing adjustment in
accordance with subparagraph (f) hereof. At the closing,
Purchaser shall reimburse Seller in an amount equal to all
deposits, if any, made by Seller with any utility company which
will remain on deposit for the benefit of Purchaser subsequent to
the closing.
(e) The amount of any unpaid taxes, water charges and
sewer rents which Seller is obligated to pay and discharge, with
the interest and penalties thereon to a date not more than two
(2) business days after the date of closing, may, at the option
of Seller, be allowed to Purchaser as a reduction of the purchase
price, provided official bills therefor with interest and
penalties thereon figured to said date, are furnished by Seller
at the closing.
(f) To the extent that any of the prorations made upon
the date of closing pursuant to this Paragraph are based upon
estimates of payments to be made and/or expenses to be incurred
by Purchaser subsequent to the date of closing, or have been
erroneously made, Seller and Purchaser agree to adjust such
prorations promptly upon receipt by Seller or Purchaser, as the
case may be, of bills or other documentation setting forth the
actual and/or correct amount of such expenses. The provisions of
this Paragraph shall survive the closing.
(g) In addition to the other adjustments and
apportionments set forth in this Paragraph, Purchaser shall be
entitled to the following adjustments at closing:
Page 20
(i) The adjustment, if any, with respect to
Seller's Pre-Existing Obligations pursuant to Paragraph 47
hereof;
(ii) An adjustment of $640.00 with respect to
each common hallway at the Premises which has not been painted
within two (2) prior to the date of closing;
(iii) An adjustment of $180.00 with respect to
each vacant one-bedroom apartment at the Premises which has not
been painted since such apartment became vacant;
(iv) An adjustment of $300.00 with respect to
each vacant one-bedroom apartment at the Premises in which the
floors have not been sanded and polyurethaned since such
apartment became vacant;
(v) An adjustment of $240.00 with respect to
each vacant two-bedroom apartment at the Premises which has not
been painted since such apartments became vacant; and
(vi) An adjustment of $350.00 with respect to
each vacant two-bedroom apartment at the Premises in which the
floors have not been sanded and polyurethaned since such
apartment became vacant.
54. (a) In connection with the conveyance of the Premises
by Seller to Purchaser, Seller shall deliver to Purchaser at the
closing:
(i) [Intentionally omitted];
(ii) an instrument duly executed and acknowledged
by Xxxxxx, in which Seller assigns to Purchaser all of Seller's
right, title and interest as landlord, in, to and under all
Leases or future leases in effect as of the date of closing,
which instrument shall contain no representations or warranties,
express or implied;
(iii) an instrument duly executed and
acknowledged by Seller in which Seller assigns to Purchaser all
of Seller's right, title and interest under the Service Contracts
in effect as of the date of closing, if any, a schedule of which
shall be annexed thereto, which instrument shall contain no
representations or warranties, express or implied;
(iv) an instrument duly executed and acknowledged
by Seller in which Seller assigns to Purchaser all of Seller's
right, title and interest in and to all security and similar
deposits made by Tenants pursuant to the terms of their Leases, a
schedule of which shall be annexed thereto, which instrument
shall contain no representations or warranties, express or
implied. Seller shall, at its option, either deliver therewith a
good certified or official bank check to Purchaser's order in the
aggregate amount of such deposits, including accrued interest, if
any, which would be due to Tenants, if such deposits were
withdrawn on the date of closing, or make arrangements to
transfer the accounts in which such deposits are maintained to
Purchaser (in either case, less any permissible administrative
expenses, the aggregate amount of which shall, in the case of a
transfer of accounts, be apportioned as of the date of closing);
(v) an instrument duly executed and acknowledged
by Seller in which Seller assigns to Purchaser, to the extent
transferable and in effect on the date of closing, all of
Seller's right, title and interest in and to all existing
licenses and permits held by Seller and relating to Seller's
ownership or operation of the Premises (but expressly without
warranty or representation by Seller that it has any rights in
the foregoing which are transferable), which assignment may be
general in nature;
(vi) a form letter, addressed to the Tenants and
executed by Xxxxxx, advising such Tenants of the conveyance of
the Premises and the transfer of their security and similar
deposits to Purchaser, directing them to pay rent to a person and
at an address designated by
Page 21
Purchaser and containing such other
information as may be required in accordance with New York law;
(vii) all records and files relating to the
operation and maintenance of the Premises in Seller's possession
or under Xxxxxx's control. Such records and files shall include
(to the extent available) but not be limited to counterparts of
the Leases and Service Contracts and a copy of any transferable
permits or licenses;
(viii) all other instruments and documents,
including a statement of adjustments, to be executed,
acknowledged where appropriate and/or delivered by Seller to
Purchaser pursuant to any of the other provisions of this
Contract; and
(ix) any and all keys to the Premises in Seller's
possession.
(b) In connection with the conveyance of the Premises
by Seller to Purchaser, Purchaser shall deliver to Seller or the
Title Company, as the case may be, the following:
(i) an instrument or counterparts of the
instrument described in clause (ii) of subparagraph (a) hereof,
duly executed and acknowledged by Xxxxxxxxx, in which Xxxxxxxxx
assumes and agrees to observe and perform all of the obligations
of Seller under the Leases described in said clause which arise
on and after the date of closing and to indemnify Seller in
respect thereof;
(ii) an instrument or counterparts of the
instrument described in clause (iii) of subparagraph (a) hereof,
duly executed and acknowledged by Xxxxxxxxx, in which Purchaser
assumes and agrees to observe and perform all of the obligations
of Seller under the Service Contracts described in said clause,
if any, which arise on and after the date of closing and to
indemnify Seller in respect thereof;
(iii) an instrument or counterparts of the
instrument described in clause (iv) of subparagraph (a) hereof,
duly executed and acknowledged by Xxxxxxxxx, in which Purchaser
acknowledges receipt of, and agrees to indemnify Seller, from and
after the date of closing, in respect of, the deposits assigned
to Purchaser pursuant to said clause;
(iv) if Purchaser is a partnership, a certificate
executed by a general partner of Purchaser certifying that such
general partner has been duly authorized by all requisite
partnership action to enter into the within transaction, and to
execute, acknowledge and deliver on behalf of Purchaser this
Contract and the documents contemplated hereby (and if such
general partner shall be a corporation, that all required
corporate actions, including consents of shareholders, if
required, necessary to authorize the execution and delivery of
this Contract and the other documents contemplated hereby, shall
have been performed and obtained), together with a copy of
Purchaser's Certificate and/or Agreement of Limited Partnership
evidencing the authority of the general partner, certified as
true, correct and complete by said general partner;
(v) if Purchaser is a corporation, certified
resolutions of the Board of Directors of Purchaser and, if
required, consent of the shareholders of Purchaser, authorizing
the purchase of the Premises by Xxxxxxxxx and the execution and
delivery of this Contract and the other documents contemplated
hereby and such other proof of Purchaser's right, power and
authority to acquire the premises from Seller on the terms and
conditions of this Contract as Seller may reasonably require; and
Page 22
(vi) all other instruments and documents,
including a statement of adjustments, to be executed,
acknowledged where appropriate and/or delivered by Purchaser to
Seller and Purchaser shall pay or cause to be paid to Seller all
sums of money to which Seller may be entitled pursuant to any of
the other provisions of this Contract.
LAKE GROVE ASSOCIATES CORP.
(Seller)
By: /s/ Xxxxx Xxxxx
-------------------
Name: Xxxxx Xxxxx
Title: President
HOME PROPERTIES OF NEW YORK, L.P.
(Purchaser)
BY: Home Properties of New York, Inc.,
a general partner
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chairman
ESCROW AGENT:
/s/ Xxxxx X. Xxxx
-----------------
MILES X. XXXX
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