EXHIBIT 10.4
CONTRACT FOR PURCHASE OF BRANCH
38
CONTRACT OF - SALE-OFFICE, COMMERICAL AND MULTI-FAMILY RESIDENTIAL PREMISES
(2000) This form was prepared by the Committee on Real Property Law of the
Association of the Bar of the City of New York. To view an introduction to the
form, visit the Real Estate Law page at www.abcny,org.
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Contract of Sale - Office, Commercial and Multi-Family Residential Premises
Between
Shellbar, Inc.
0000 Xxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxx 33437("Seller")
---------------------------
And
Flatbush Federal Savings and Loan Association of
Brooklyn
0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, New York(Purchaser")
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Dated September 29, 2005
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Premises:
Street Address: 0000 00xx Xxxxxx
----------------
Xxxx or Town: Brooklyn
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County: Kings
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State: New York
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Contract of Sale - Office, Commercial and Multi-Family Residential Premises
CONTRACT DATED ____________________ between Shellbar, Inc. ("Seller") and
Flatbush Federal Savings and Loan ("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
Section 1. Sale of Premises and Acceptable Title
1.01 Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, at the price and upon the terms and condition set forth in this
contract: (a) the parcel of land more particularly described in Schedule A.
attached hereto ("Land"); (b) all buildings and improvements situated on the
Land (collectively, "Building"); (e) all right, title and interest of Seller, if
any, in and to the land lying in the bed of any street or highway in front of or
adjoining the Land to the center line thereof and to any unpaid award for any
taking by condemnation or any damage to the Land by reason of a change of grade
of any street or highway; (d) the appurtenances and all the estate and rights of
Seller in and to the Land and Building and (e) all right, title and interest of
Seller, if any, in and to the fixtures, equipment and other personal property
attached or appurtenant to the Building (collectively, "Premises"). For purposes
of this contract, "appurtenances" shall include all right, title and interest of
Seller in and to (i) the leases for space in the Building and all guarantees
thereof, as shown on Schedule E attached hereto and an leases entered into by
Seller between the date of this contract and the Closing (as hereinafter
defined); (ii) the Service Contracts (as hereinafter defined): (iii) plans,
specifications architectural and engineering drawings, prints, surveys, soil and
substrata studies relating to the Land and the Building in Seller's possession;
(iv) all operating manuals and books, data and records regarding the Land and
the Building and its component systems in Seller's possession; (v) all licenses,
permits, certificates of occupancy and other approvals issued by any state,
federal or local authority relating to the se, maintenance or operation of the
Land and the Building to the extent that they may be transferred or assigned;
(vi) all warranties or guaranties, if any, applicable to the Building, to the
extent such warranties or guaranties are assignable; and (vii) all tradenames,
trademarks, servicemarks, logos, copyrights and good will relating to or used in
connection with the operation of the Land and the Building. The Premises are
located at or known as 0000 00xx Xxxxxx, Xxxxxxxx, New York.
1.02 Seller shall convey and Purchaser shall accept fee simple title to
the Premises in accordance with the terms of this contract, subject only to: (a)
the matters set forth in Schedule B attached hereto (collectively, "Permitted
Exceptions"); and (b) such other matters as (i) the title insurer specified in
Schedule D attached hereto (or if none is so specified, then any title insurer
licensed to do business by the State of New York) shall be willing, without
special premium, to omit as exceptions to coverage or to except with insurance
against collection out of or enforcement against the Premises and (ii) shall be
accepted by any lender described in Section 274-a of the real Property Law
("Institutional Lender") which has committed in writing to provide mortgage
financing to Purchaser of the Premises ("Purchaser's Institutional Lender"),
except that if such acceptance by Purchaser's Institutional Lender is
unreasonably withheld or delayed, such acceptance shall be deemed to have been
given.
Section 2. Purchase Price, Acceptable Funds, Existing Mortgages, Purchase Money,
Mortgage Escrow of Downpayment and Foreign Persons
2.01 The purchase price ("Purchase Price") to be paid by Purchaser to
Seller for the Premises as provided in Schedule C attached hereto is
$1,700,000.00.
2.02 All monies payable under this contract, unless otherwise specified in
this contract, shall be paid by (a) certified checks of Purchaser or any person
making a purchase money loan to Purchaser drawn on any bank or trust company
having a banking office in the City of New York and which is a member of the New
York Clearing House Association or (b) official bank checks drawn by any such
banking institution, payable to the order of Seller, except that uncertified
checks of Purchaser payable to the order of Seller up to the amount of one-half
of one percent of the Purchase Price shall be acceptable for sums payable to
Seller at the Closing, or (c) with respect to the portion of the Purchase Price
payable at the Closing, at Seller's election, by wire transfer of immediately
available federal funds to an account designated by Seller not less than three
business days prior to the Closing.
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2.03 [INTENTIONALLY OMITTED BY PARTIES]
2.04 [INTENTIONALLY OMITTED BY PARTIES]
2.05 (a) If the sum paid under paragraph (a) of Schedule C or any other
sum paid on account of the Purchase Price prior to the Closing (collectively,
"Downpayment") are paid by check or checks drawn to the order of and delivered
to Seller's attorney or another escrow agent (Escrowee"), the Escrowee shall
hold the proceeds thereof in escrow in a special bank account (or as otherwise
agreed in writing by Seller, Purchaser and Escrowee) until the Closing or sooner
termination of this contract and shall pay over or apply such proceeds in
accordance with the terms of this section. Escrowee need not hold such proceeds
in an interesting-bearing account, but if any interest is earned thereon such
interest shall be paid to the same party entitled to the escrowed proceeds, and
the party receiving such interest shall pay any income taxes thereon. The tax
identification numbers of the parties are either set forth in Schedule D or
shall be furnished to Escrowee upon request At the Closing, such proceeds and
the interest thereon, if any, shall be paid by Escrowee to Seller. If for any
reason the Closing does not occur and either party makes a written demand upon
Escrowee for payment of such amount, Escrow shall give written notice to the
other art of such demand. If Escrowee does not receive a written objection from
the other party to the proposed payment within 10 business days after the giving
of such notice, Escrowee is herby authorized to make such payment. If Escrowee
does receive such written objection with such 10 day period or if for any other
reason Escrowee in good faith shall elect not to make such payment, Escrowee
shall continue to hold such amount until otherwise directed by written
instruction from the parties to this contract or a final judgement of a court.
However, Escrow shall have the right at any time to deposit the escrowed
proceeds and interest thereon, if any, with the clerk of the Supreme Court of
the county in which the Land is located. Escrowee shall give written notice of
such deposit to Seller and Purchaser. Upon such deposit Escrowee shall be
relieved and discharged of all further obligations and responsibilities
hereunder.
(b) The parties acknowledge that Escrowee is action solely as a
stakeholder at their request and for their convenience, that Escrowee shall not
be deemed to be the agent of either of the parties, and that Escrowee shall not
be liable to either of the parties for any act or omission on its part unless
taken or suffered in bad faith, in willful disregard of this contract or
involving gross negligence; Seller and Purchaser shall jointly and severally
indemnify and hold Escrowee harmless from and against all costs, claims and
expenses, including reasonable attorneys' fees, incurred in connection with the
performance of Escrowee's duties hereunder, except with respect to actions or
omissions taken or suffered by Escrowee in bad faith, in willful disregard of
this contact or involving gross negligence on the part of Escrowee.
(c) Escrowee has acknowledged agreement to these provisions by
signing in the place indicated on the signature page of this contract.
(d) If Escrowee is Seller's attorney, Escrowee or any member of its
firm shall be permitted to act as counsel for Seller in any dispute as to the
disbursement of the Downpayment
(e) or any other dispute between the parties whether or not Escrowee
is in possession of the Downpayment and continues to act as Escrowee.
(f) Escrowee may act or refrain from action in respect of any matter
referred to in this 2.05 in full reliance upon and with the advise of counsel
which may be selected by it (including any member of its firm) and shall be
fully protected in so acting or refraining from action upon the advice of such
counsel.
2.06 In the event that Seller is a "foreign person", as defined in
Internal Revenue Code Section 1445 and regulations issued thereunder
(collectively, the "Code Withholding Section"), or in the event that Seller
fails to deliver the certification of non-foreign status required under 10.12
(c), or in the event that Purchaser is not entitled under the Code Withholding
Section to rely on such certification, Purchaser shall deduct and withhold from
the Purchase Price a sum equal to ten percent (10%) thereof and shall at Closing
remit the withheld amount with Forms 8288 and 8288A or any successors thereto to
the Internal Revenue Service; and if the cash balance of the Purchase Price
payable to Seller at the Closing after deduction of net adjustments,
apportionments and credits (if any) to be made or allowed in favor of Seller at
the Closing as herein provided is less than ten percent (10%) of the Purchase
Price, Purchaser shall have the right to terminate this contract, in which event
Seller shall refund the Downpayment to Purchaser and shall reimburse Purchaser
for title examination and survey costs as if this contract were terminated
pursuant to 13.02. The right of termination
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provided for in this 2.06 shall be in addition to and not in limitation of any
other rights or remedies available to Purchaser under applicable law.
Section 3. The Closing
3.01 Except as otherwise provided in this contract, the closing of title
pursuant to this ("Closing") shall take place on or about the scheduled date and
time of closing specified in Schedule D (the actual date of the Closing being
herein refereed to as "Closing Date") at the place specified in Schedule D.
Section 4. Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows:
4.01 Unless otherwise provided in this contract, Seller is the sole owner
of the Premises.
4.02 [INTENTIONALLY OMITTED BY PARTIES]
4.03 The information concerning written leases (which together with all
amendments and modifications thereof are collectively referred to as "Lease")
and any tenancies in the Premises not arising out of the Leases (collectively,
"Tenancies") set forth in Schedule E attached herein ("Rent Schedule") is
_________________accurate as of the date set forth therein or, if no date is set
forth therein, as of the date hereof and there are no Leases or Tenancies of any
space in the Premises other than those set forth therein and any subleases or
subtenancies. Except as otherwise set forth in the Rent Schedule or elsewhere in
this contract"
(a) all of the Leases are in full force and effect and none of them has
been modified, amended or extended;
(b) no renewal or extension option or options for additional space have
been granted to tenants;
(c) no tenant has an option to purchase the Premises or a right of first
refusal or first offer with respect to a sale of the Premises;
(d) the rents set forth are being collected on a current basis and there
are no arrearages in excess of one month;
(e) no tenant is entitled to rental concessions or abatements for any
period subsequent to the scheduled date of closing;
(f) Seller has not sent written notice to any tenant claiming that such
tenant is in default, which default remains uncured;
(g) No action or proceeding instituted against Seller by any tenant of
the Premises is presently pending in any court, except with respect
to claims involving personal injury or property damage which are
covered by insurance;
(h) There are no security deposits other than those set forth in the
Rent Schedule:
(i) True and complete copies of the Leases have been delivered to
Purchaser or its counsel and initialed by representatives of
Purchaser and Seller;
(j) The tenants under the Leases are in actual possession of the space
demised;
(k) Seller has performed all of the landlord's obligations under the
Leases and no notice of any default of the landlord under the Leases
has been given or to the knowledge of Seller is pending;
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(l) To the best of Seller's knowledge, no action or proceeding,
voluntary or involuntary, is pending against any tenant under any
bankruptcy or insolvency act; and
(m) No leasing commissions are due or owing with respect to any of the
Leases.
If any Leases which have been exhibited to and initialed by Purchaser or its
representative contain provisions that are inconsistent with the foregoing
representations and warranties, such representations and warranties shall be
deemed modified to the extent necessary to eliminate such inconsistency and to
conform such representations and warranties to the provisions of the Leases.
4.04 [INTENTIONALLY OMITTED BY PARTIES]
4.05 [INTENTIONALLY OMITTED BY PARTIES]
4.06 [INTENTIONALLY OMITTED BY PARTIES]
4.07 [INTENTIONALLY OMITTED BY PARTIES]
4.08 [INTENTIONALLY OMITTED BY PARTIES]
4.09 If a copy of a certificate of occupancy for the Premises has been
exhibited to and initialed by Purchaser or its representative, such copy is a
true copy of the original and such certificate has not been amended, but Seller
makes no representation as to compliance with any such certificate.
4.10 The assessed valuation and real estate taxes set forth in Schedule D,
if any, are the assessed valuation of the Premises and the taxes paid or payable
with respect thereto for the fiscal year indicated in such schedule. Except as
otherwise set forth in Schedule D, there are no tax abatements or exemptions
affection the Premises.
4.11 Except as otherwise set forth in a schedule attached hereto, if any,
all of the items of personal property (or replacements thereof) listed in such
schedule, if any, are and on the Closing Date will be owned by Seller free of
liens and encumbrances other than the lien(s) of the Existing Mortgages(s), if
any.
4.12 Seller has no actual knowledge that any incinerator, boiler or other
burning equipment on the Premises is being operated in violation of applicable
law. If copies of a certificate or certificates of operation therefore have been
exhibited to and initialed by Purchaser or its representative, such copies are
true xxxxx of the originals.
4.13 Except as otherwise set forth in Schedule D, Seller has no actual
knowledge of any assessment payable in annual installments, or any part thereof,
which has become a lien on the Premises.
4.14 Seller is not a "foreign person" as defined in the Code Withholding
Section.
4.15 Seller is a Corporation that has been duly organized and is validly
and presently existing in good standing under the laws of the state of its
formation.
4.16 Seller has taken all necessary action to authorize the execution,
delivery and performance of its contract and has the power and authority to
execute, deliver and perform this contract and consummate the transaction
contemplated hereby. Assuming due authorization, execution and delivery by each
other party hereto, this contract and all obligations of Seller hereunder are
the legal, valid and binding obligations of Seller, enforceable in accordance
with the terms of this contract, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affection the
enforcement of creditors' right generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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4.17 The execution and delivery of this contract and the performance of
its obligations hereunder by Seller will not conflict with any provision of any
law or regulation to which Seller is subject or any agreement or instrument to
which Seller is a party or by which it is bound or any order or decree
applicable to Seller or result in the creation or imposition of any lien on any
of Seller's assets or property which would materially and adversely affect the
ability of Seller to Carry out the terms of this contract. Seller has obtained
any consent, approval, authorization or order of any court or governmental
agency or body required for the execution, delivery or performance by Seller of
this contract.
4.18 There are no pending proceedings or appeals to correct or reduce the
assessed valuation of the Premises.
For purposes of this Section, the phase "to Seller's knowledge" shall mean the
actual knowledge of actual notice without any special investigation.
The representations and warranties made by Seller in this contract shall be
deemed restated and shall be true and accurate on the Closing Date.
Section 5. Acknowledgements, Representations and Warranties of Purchaser
Purchaser acknowledges that:
5.01 Purchaser has inspected the Premises, is fully familiar with the
physical condition and state of repair thereof, and, subject to the provisions
of 7.01, 8.01, and 9.04, shall accept the Premises "as is" and in their present
condition, subject to reasonable use, wear, tear and natural deterioration
between now and the Closing Date, without any reduction in the Purchase Price
for any change in such condition by reason thereof subsequent to the date of
this contract.
5.02 Before entering into this contract, Purchaser has made such
examination of the Premises, the operation, income and expenses thereof and all
other matters affecting or relating to this transaction as Purchaser deemed
necessary. In entering into this contract, Purchases has not been induced by and
has not relied upon any representations, warranties or statements, whether
express or implied, made by Seller or any agent, employee or other
representative of Seller or by any broker or any other person representing or
purporting to represent Seller, which are not expressly set forth in this
contract, whether or not any such representations, warranties or statements were
made in writing or orally.
Purchaser represents and warrants to Seller that:
5.03 The funds comprising the Purchase Price to be delivered to Seller in
accordance with this contract are not derived from any illegal activity.
5.04 Purchaser has taken all necessary action to authorize the execution,
delivery and performance of this contract and has the power and authority to
execute, deliver and perform this contract and the transaction contemplated
hereby. Assuming due authorization, execution and delivery by each other party
hereto, this contract and all obligations of Purchaser hereunder are the legal,
valid and binding obligations of Purchaser, enforceable in accordance with the
terms of this contract, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditor's rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.05 The execution and delivery of this contract and the performance of
its obligations hereunder by Purchaser will not conflict with any provision of
any law or regulation to which Purchaser is subject or any agreement or
instrument to which Purchaser is a party or by which it is bound or any order or
decree applicable to Purchaser or result in the creation or imposition of any
lien on any of Purchaser's assets or property which would materially and
adversely affect the ability of Purchaser to carry out the terms of this
contract. Purchaser has obtained any consent, approval, authorization or order
or any court or governmental agency or body required for the execution, delivery
or performance by Purchaser of this contract.
Section 6. Seller's Obligations as to Leases
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6.01 Unless otherwise provided in a schedule attached to this contract,
between the date of this contract and the Closing, Seller shall not, without
Purchaser's prior written consent, which consent shall not be unreasonable
withheld: (a) amend, renew or extend any Lease in any respect, unless required
by law; (b) grant a written lease to any tenant occupying space pursuant to a
Tenancy; or (c) terminate any lease or Tenancy except by reason of a default by
the tenant thereunder.
6.02 Unless otherwise provided in a schedule attached to this contract,
between the date of this contract and the Closing, Seller shall not permit
occupancy of, or enter into any new lease for, space in the Building which is
presently vacant or which may hereafter become vacant without first giving
Purchaser written notice of the identity of the proposed tenant, together with
(a) either a copy of the proposed lease or a summary of the terms of payment
thereof. If Purchaser objects to such proposed lease, Purchaser shall so notify
Seller within 4 business days after receipt of Seller's notice if such notice
was personally delivered to Purchaser, or within 7 business days after the
mailing of such notice by Seller to Purchaser, in which case Seller shall not
enter into the proposed lease. Unless otherwise provided in a schedule attached
to this contract, Purchaser shall pay to Seller at the Closing, in the manner
specified in 2.02, the rent and additional rent that would have been payable
under the proposed lease from the date on which the tenant's obligation to pay
rent would have commenced if Purchaser had not so objected until the Closing
Date, less the amount of the brokerage commission specified in Seller's notice
and the reasonable cost of decoration or other work required to be performed by
the landlord under the terms of the proposed lease to suit the premises to the
tenant's occupancy ("Reletting Expenses"), prorated in each case over the term
of the proposed lease and apportioned as of the Closing Date. If Purchaser does
not so notify Seller of its objection, Seller shall have the right to enter into
the proposed lease with the tenant identified in Seller's notice and Purchaser
shall pay to Seller, in the manner specified in 2.02, the Reletting Expenses,
prorated in each case over the term of the lease and apportioned as of the later
of the Closing Date or the rent commencement date. Such payment shall be made by
Purchaser to Seller at the Closing. In no event shall the amount so payable to
Seller exceed the sum actually paid by Seller on account thereof.
6.03 If any space is vacant on the Closing Date, Purchaser shall accept
the Premises subject to such vacancy, provided that the vacancy was not
permitted or created by Seller in violation of any restrictions contained in
this contract. Seller shall not grant any concessions or rent abatements for any
period following the Closing without Purchaser's prior written consent. Seller
shall not apply all or any part of the security deposit of any tenant unless
such tenant has vacated the Premises.
6.04 Seller does not warrant that any particular Lease or Tenancy will be
in force or effect at the Closing or that the tenants will have performed their
obligations thereunder. The termination of any Lease or Tenancy prior to the
Closing by reason of the tenant's default shall not affect the obligations of
Purchaser under this contract in any manner or entitle Purchaser to any
abatement of or credit against the Purchase Price or give rise to any other
claim on the part of Purchaser.
6.05 Seller hereby indemnifies and agrees to defend Purchaser against any
claims made pursuant to 7-107 or 7-108 of the General Obligations Law (the
"GOL") by tenants who resided in the Premises on or prior to the Closing Date
other than (a) claims with respect to tenants security deposit paid, credited or
assigned to Purchaser pursuant to 10.03, (b) claims made pursuant to 7-107 of
the GOL, with respect to funds for which Seller was not liable, and (c) claims
made pursuant to 7-108 of the GOL by tenants to whom Purchaser failed to give
the written notice specified in 7-108 (c) of the GOL within thirty days after
the Closing Date. The foregoing indemnity and agreement shall survive the
Closing and shall be in lieu of any escrow permitted by 7-108 (d) of the GOL,
and Purchaser hereby waives any right it may have to require any such escrow.
Section 7. Responsibility for Violations
7.01 Except as provided in 7.02 and 7.03, all notes or notices of
violations of law or governmental ordinances, orders or requirements which were
noted or issued prior to the date of this contract by any governmental
department, agency or bureau having jurisdiction as to conditions affecting the
Premises and all liens which have attached to the Premises prior to the Closing
pursuant to the Administrative Code of the City of New York, if applicable,
shall be
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removed or complied with by Seller. If such removal or compliance has not been
completed prior to the Closing, Seller shall pay to Purchaser at the Closing the
reasonably estimated unpaid cost to effect or complete such removal or
compliance, and Purchaser shall be required to accept title to the Premises
subject thereto, except that Purchaser shall not be required to accept such
title and may terminate this contract as provided in 13.02 if (a) Purchaser's
Institutional Lender reasonable refuses to provide financing by reason of
Purchaser.
7.02 If the reasonable estimates aggregate cost to remove or comply with
any violations or liens which Seller is required to remove or comply with
pursuant to the provisions of 7.01 shall exceed the Maximum Amount specified in
Schedule D (or if none is so specified, the Maximum Amount shall be one-half of
one percent of the Purchase Price), Seller shall have the right to cancel this
contract, in which event the sole liability of Seller shall be as set forth in
13.02, unless Purchaser elects to accept title to the Premises subject to all
such violations or liens, in which event Purchaser shall be entitled to a credit
of an amount equal to the Maximum Amount against the monies payable at the
Closing.
7.03 Regardless of whether a violation has been noted or issued prior to
the date of this contract, Seller's failure to remove or fully comply with any
violations which a tenant is required to remove or comply with pursuant to the
terms of its lease by reason of such tenant's use or occupancy shall not be an
objection to title. Purchaser shall accept the Premises subject to all such
violations without any liability of Seller with respect thereto or any abatement
of or credit against the Purchase Price, except that if Purchaser's
Institutional Lender reasonably refuses to provide financing by reason of a
violation described above, Purchaser shall not be required to accept the
Premises subject thereto and Purchaser shall have the right to terminate this
contract in the manner provided in 13.02.
7.04 If required, Seller, upon written request by Purchaser, shall
promptly furnish to Purchaser written authorizations to make any necessary
searches for the purposes of determining whether notes or notices of violations
have been noted or issued with respect to the Premises or liens have attached
thereto.
Section 8. Destruction, Damage or Condemnation
8.01 The provisions of Section 5-1311 of the General Obligations Law shall
apply to the sale and purchase provided for in this contract.
Section 9. Covenants of Seller
Seller covenants that between the date of this contract and the Closing:
9.01 The existing Mortgage(s) shall not be amended or supplemented or
prepaid in whole or in part. Seller shall pay or make, as and when due and
payable, all payments of principal and interest and all deposits required to be
paid or made under the Existing Mortgage(s).
9.02 Seller shall not modify or amend any Service Contract or enter into
any new service contract unless the same is terminable without penalty by the
then owner of the Premises upon not more than 30 day's notice.
9.03 If an Insurance schedule is attached hereto, Seller shall maintain in
full force and effect until the Closing the Insurance policies described in such
schedule or renewals thereof for no more than one year of those expiring before
the Closing.
9.04 No fixtures, equipment or personal property included in this sale
shall be removed from the Premises unless the same are replaced with similar
items of at least equal quality prior to the Closing.
9.05 Seller shall not withdraw, settle or otherwise compromise any protest
or reduction proceeding affecting real estate taxes assessed against the
Premises for any fiscal period in which the Closing is to occur or any
subsequent fiscal period without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld. Real estate tax refunds and credits
received after the Closing Date which are attributable to the fiscal tax year
during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, after deducing the expenses of collection thereof, which obligation
shall survive the Closing.
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9.06 Seller shall allow Purchaser or Purchaser's representatives access to
the Premises, the Leases and other documents required to be delivered under this
contract upon reasonable prior notice at reasonable times.
Section 10. Seller's Closing Obligations
At the Closing, Seller shall deliver the following to Purchaser:
10.01 A statutory form of bargain and sale deed without covenant against
grantor's acts, containing the covenant required by Section 13 of the Lien Law,
and properly executed in proper form for recording so as to convey the title
required by this contract.
10.02 All Leases initialed by Purchaser and all others in Seller's
possession.
10.03 A schedule of all security deposits (and, if the Premises contains
six or more family dwelling units, the most recent reports with respect thereto
issued by each banking organization in which they are deposited pursuant to GOL
7-103) and a check or credit to Purchaser in the amount of any cash security
deposits, including any interest thereon, held by Seller on the Closing Date or,
if held by an Institutional Lender, an assignment to Purchaser and written
instructions to the holder, of such deposits to transfer the same to Purchaser,
and appropriate instruments of transfer or assignment with respect to any
security deposits which are other than cash.
10.04 A schedule updating the Rent Schedule and setting forth all arrears
in rents and all prepayments of rents.
10.05 All Service Contracts initialed by Purchaser and all others in
Seller's possession which are in effect on the Closing Date and which are
assignable by Seller.
10.06 An assignment to purchaser, without recourse or warranty, of all of
the interest of Seller in those Service Contracts, insurance policies,
certificates, permits and other documents to be delivered to Purchaser at the
Closing which are then in effect and are assignable by Seller.
10.07 (a) Written consent(s) of the Mortgagee(s), if required under
2.03(b) (b) certificate(s) executed by the Mortgagee(s) in proper form for
recording and certifying (i) the amount of the unpaid principal balance thereof,
(ii) the maturity date thereof, (iii) the interest rate, (iv) the last date to
which interest has been paid thereon and (v) the amount of any escrow deposits
held by the Mortgagee(s); Seller shall pay the fees for recording such
certificate(s). Any Mortgagee which is an Institutional Lender may furnish a
letter complying with Section 274-a of the Real Property Law in lieu of such
certificate.
10.08 An assignment of all Seller's right, title and interest in escrow
deposits for real estate taxes, insurance premiums and other amounts, if any,
then held by the Mortgagee(s).
10.09 All original insurance policies with respect to which premiums are
to be apportioned or, if unobtainable, true copies or certificates thereof.
10.10 To the extent they are then in Seller's possession and not posted at
the Premises certificates, licenses, permits, authorizations and approvals
issued for or with respect to the Premises by governmental and
quasi-governmental authorities having jurisdiction.
10.11 Such affidavits as Purchaser's title company shall reasonably
require in order to omit from its title insurance policy all exceptions for
judgments, bankruptcies or other returns against persons or entities whose names
are the same as or similar to Seller's name.
10.12 (a) Checks to the order of the appropriate officers in payment of
all applicable real property transfer taxes and copies of any required tax
returns therefore executed by Seller, which checks shall be certified or
official bank
47
checks if required by the taxing authority, unless Seller elects to have
Purchaser pay any of such taxes and credit Purchaser with the amount thereof,
and (b) a certification of non-foreign status, in form required by the Code
Withholding Section, signed under penalty of perjury. Seller understands that
such certification will be retained by Purchaser and will be made available to
the Internal Revenue Service on request.
10.13 To the extent they are then in Seller's possession, copies of
current painting and payroll records. Seller shall make all other Building and
tenant files and records available to Purchaser for copying, which obligation
shall survive the Closing.
10.14 An original letter, executed by Seller or by its agent, advising the
tenants of the sale of the Premises to Purchaser and directing that rents and
other payments thereafter be sent to Purchaser or as Purchaser may direct.
10.15 Notice(s) to the Mortgagee(s), executed by Seller or by its agent,
advising of the sale of the Premises to Purchaser and directing that future
bills and other correspondence should thereafter be sent to Purchaser or as
Purchaser may direct.
10.16 If Seller is a corporation and if required by Section 909 of the
Business Corporation Law, a resolution of Seller's board of directors
authorizing the sale and delivery of the deed and a certificate executed by the
secretary or assistant secretary of Seller certifying as to the adoption of such
resolution and setting forth facts showing that the transfer complies with the
requirements of such law. The deed referred to in 10.01 shall also contain a
recital sufficient to establish compliance with such law.
10.17 Possession of the Premises in the condition required by this
contact, subject to the Leases and Tenancies, and keys therefore.
10.18 A blanket assignment, without recourse or representation, of all
Seller's right, title and interest, if any, to all contractors', suppliers',
material men's and builders' guarantees and warranties of workmanship and/or
materials in force and effect with respect to the Premises on the Closing Date
and a true and complete copy of each thereof.
10.19 Estoppel letters in the form attached hereto as Schedule F from the
following tenants; Flatbush Federal Savings and Loan Association of Brooklyn
---------------------------------------------------------
10.20 A certificate of Seller confirming that the warranties and
representations of Seller set forth in this contract are true and complete on
and as of the Closing Date (the statements made in such certificate shall be
subject to the same limitations on survival as are applicable to Seller's
representations and warranties under 4).
10.21 Any other documents required by this contract to be delivered by
Seller.
Section 11. Purchaser's Closing Obligations
At the Closing, Purchaser shall:
11.01 Deliver to Seller checks or wire transfer of immediately available
federal funds to Seller, in payment of the portion of the Purchase Price payable
at the Closing, as adjusted for apportionments under Section 12, plus the amount
of escrow deposits, if any, assigned pursuant to 10.08.
11.02 [INTENTIONALLY OMITTED BY PARTIES]
11.03 [INTENTIONALLY OMITTED BY PARTIES]
11.04 Cause the deed to be recorded, duly complete all required real
property transfer tax returns and cause all such returns and checks in payment
of such taxes to be delivered to the appropriate officers promptly after the
Closing.
48
11.05 Deliver to Seller an agreement assuming all of landlord's
obligations under the Leases from and after the Closing Date and indemnifying
and agreeing to defend Seller against any claims made by tenants with respect to
any failure to perform such obligations.
11.06 Deliver to Seller a certificate confirming that the warranties and
representations of Purchaser set forth in this contract are true and complete as
of the Closing Date.
11.07 Deliver any other documents required by this contract to be
delivered by Purchaser.
Section 12. Apportionments
12.01 The following apportionments shall be made between the parties at
the Closing as of the close of business on the day prior to the Closing Date:
(a) prepaid rents and Additional Rents (as defined in 12.03) and
revenues, if any, from telephone booths, vending machines and other
income-producing agreements;
(b) no adjustments shall be made for taxes, utilities and other charges
payable by purchaser under the lease agreement.
(c) [INTENTIONALLY OMITTED BY PARTIES]
(d) [INTENTIONALLY OMITTED BY PARTIES]
(e) [INTENTIONALLY OMITTED BY PARTIES]
(f) [INTENTIONALLY OMITTED BY PARTIES]
(g) [INTENTIONALLY OMITTED BY PARTIES]
(h) [INTENTIONALLY OMITTED BY PARTIES]
(i) [INTENTIONALLY OMITTED BY PARTIES]
(j) [INTENTIONALLY OMITTED BY PARTIES]
((k) [INTENTIONALLY OMITTED BY PARTIES]
12.02 [INTENTIONALLY OMITTED BY PARTIES]
12.03 [INTENTIONALLY OMITTED BY PARTIES]
49
Section 13. Objections to Title, Failure of Seller of Purchaser to Perform And
Vendee's Lien
13.01 Purchaser shall promptly order an examination of title and shall
cause a copy of the title report to be forwarded to Seller's attorney upon
receipt. Seller shall be entitled to a reasonable adjournment or adjournments of
the Closing for up to 60 days or until the expiration date of any written
commitment of Purchaser's Institutional Lender delivered to Purchaser prior to
the schedule date of Closing, whichever occurs first, to remove any defects in
or objections to title noted in such title report and any other defects or
objections which may be disclosed on or prior to the Closing Date.
13.02 If Seller shall be unable to convey title to the Premises at the
Closing in accordance with the provisions of this contract or if Purchaser shall
have any other grounds under this contract for refusing to consummate the
purchase provided for herein, Purchaser, nevertheless, may elect to accept such
title as Seller may be able to convey with a credit against the monies payable
at the Closing equal to the reasonably estimated cost to cure the same (up to
the Maximum Expense described below), but without any other credit or liability
on the part of Seller. If Purchaser shall not so elect, Purchaser may terminate
this contract and the sole liability of Seller shall be to refund the
Downpayment to Purchaser and to reimburse Purchaser for the net cost of title
examination, but not to exceed the net amount charged by Purchaser's title
company therefore without issuance of a policy, and the net cost of updating the
existing survey of the Premises or the net cost of a new survey of the Premises
if there was no existing survey or the existing survey was not capable of being
updated and a new survey was required by Purchaser's Institutional Lender. Upon
such refund and reimbursement, this contract shall be null and void and the
parties hereto shall be relieved of all further obligations and liability other
than any arising under Section 14. Seller shall not be required to bring any
action or proceeding or to incur any expense in excess of the Maximum Expense
specified in Schedule D (or if none is so specified, the Maximum Expense shall
be one-half of one percent of the Purchase Price) to cure any title defect or to
enable Seller otherwise to comply with the provisions of this contract, but the
foregoing shall not permit Seller to refuse to pay off at the Closing, to the
extent of the monies payable at the Closing, mortgages or other liens on the
Premises which can be satisfied or discharged by payment of a sum certain, other
than Existing Mortgages, of which Seller has actual knowledge.
13.03 Any unpaid taxes, assessments, water charges and sewer rents,
together with the interest and penalties thereon to a date not less than two
days following the Closing Date, and any other liens and encumbrances which
Seller is obligated to pay and discharge or which are against corporations,
estates or other persons in the chain of title, together with the cost of
recording or filing any instruments necessary to discharge such liens and
encumbrances of record, may be paid out of the proceeds of the monies payable at
the Closing if Seller delivers to Purchaser on the Closing Date official bills
for such taxes, assessments, water charges, sewer rents, interest and penalties
and instruments in recordable form sufficient to discharge any other liens and
encumbrances of record. Upon request made a reasonable time before the Closing,
Purchaser shall provide at the Closing separate checks for the foregoing payable
to the order of the holder of any such lien, charge or encumbrance and otherwise
complying with 2.02. If Purchaser's title insurance company is willing to insure
both Purchase and Purchaser's Institutional Lender, if any, that such charges,
liens and encumbrances will not be collected out of or enforced against the
Premises, then, unless Purchaser's Institutional Lender reasonably refuses to
accept such insurance in lieu of actual payment and discharge, Seller shall have
the right, in lieu of payment and discharge to deposit with the title insurance
company such funds or assurances or to pay such special or additional premiums
as the title insurance company may require in order to so insure. In such case
the charges, liens and encumbrances with respect to which the title insurance
company has agreed so to insure shall not be considered objections to title.
13.04 If Purchaser shall default in the performance of its obligation
under this contract to purchase the Premises, the sole remedy of Seller shall be
to retain the Downpayment as liquidated damages for all loss, damage and expense
suffered by Seller, including without limitation the loss of its bargain.
13.05 Purchaser shall have a vendee's lien against the Premises for the
amount of the Downpayment, but such lien shall not continue after default by
Purchaser under this contract.
50
Section 14. Broker
14.01 If a broker is specified in Schedule D, Seller and Purchaser
mutually represent and warrant that such broker is the only broker with whom
they have dealt in connection with this contract and that neither Seller nor
Purchaser knows of any other broker who has claimed or may have the right to
claim a commission in connection with this transaction, unless otherwise
indicated in Schedule D. The commission of such broker shall be paid pursuant to
separate agreement by the party specified in Schedule D. If no broker is
specified in Schedule D, the parties acknowledge entitled to a commission in
connection with this transaction. Unless otherwise provided in Schedule D,
Seller and Purchaser shall indemnify and defend each other against any costs,
claims or expenses, including attorneys' fees, arising out of the breach on
their respective parts of any representations, warranties or agreement contained
in this paragraph. The representations and obligations under this paragraph
shall survive the Closing or, if the Closing does not occur, the termination of
this contract.
Section 15. Notices
15.01 All notices under this contract shall be in writing and shall be
delivered personally or shall be sent by prepaid registered or certified mail,
or by prepaid overnight courier with receipt acknowledged, addressed as set
forth in Schedule D, or as Seller or Purchaser shall otherwise have given notice
as herein provided.
Section 16. Limitations on Survival of Representation, Warranties, Covenants and
other Obligations
16.01 Except as otherwise provided in this contract, no representatives,
warranties, covenants or other obligations of Seller set forth in this contract
shall survive the Closing, and no action based thereon shall be commenced after
the Closing. The representations, warranties, covenants and other obligations of
Seller set forth in 4.03, 6.01 and 6.02 shall survive until the Limitation Date
specified in Schedule D (or if none is so specified, the Limitation Date shall
be the date which is six months after the Closing Date), and no action based
thereon shall be commenced after the Limitation Date.
16.02 The delivery of the deed by Seller, and the acceptance thereof by
Purchaser, shall be deemed the full performance and discharge of every
obligation on the part of the Seller to be performed hereunder, except of Seller
which are expressly stated in this contract to survive the Closing.
Section 17. Due Diligence Period
17.01 During the period (the "Due Diligence Period") commencing on the
date hereof and ending at 5:00 P.M. Eastern Standard Time n the 39th day
following the date hereof, Purchaser shall have the right to have the Premises
inspected during reasonable hours, after reasonable notice to Seller, and to
obtain the following inspection reports with respect to the Premises, at
Purchaser's sole cost and expense:
(a) An inspection and report (the "Environmental Report") from a licensed
environmental inspection laboratory or a licensed engineer (the "Inspection
Company") with respect to the presence or absence of hazardous or toxic
substances or conditions at the Premises including, without limitation,
asbestos, polychlorinated biphenyls, petroleum products and those hazardous
substance defined in the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. 9601 et seq. and all amendments thereto, including,
without limitation, the Superfund Amendments and Reauthorization Act, 42 U.S.C.
9601 et seq., and the rules and regulations promulgated thereunder; New York
State Environmental Liability Review Act, New York Environmental Conservation
Law (ECL) 8-0101 et seq.; and the New York State Water Pollution Control Act,
ECL 17-01:01 et seq., (collectively, "Hazardous Substances"), on the Premises;
and
(b) An inspection and report (the Engineering Report") from a licensed
engineer and other appropriate professionals (collectively, the "Engineer") with
respect to the structural and physical condition of the Premises, all mechanical
systems and utilities servicing the Premises, curtain walls, roofs, xxxxx,
septic and drainage systems, and compliance with the Americans with Disabilities
Act (collectively, "Building Conditions").
51
17.02 Purchaser shall cause copies of the Environmental Report and
Engineering Report (collectively, the "Report") to be delivered to Seller prior
to the expiration of the Due Diligence Period. Purchaser may elect to cancel
this contract, by written notice (the "Termination Notice") to Seller delivered
on or before the last day of the Due Diligence Period, if (i) the Environmental
Report states that there are Hazardous Substances on the Premises or (ii) the
Engineering Report states that there are defects in the Building Conditions (a "
Defective Condition") and, in the best professional judgment of the Engineer,
such Defective Condition(s) will cost in excess of $ 2,500.00 to correct.
----------
17.03 During the Due Diligence Period, Seller agrees to cooperate in all
reasonable respects with Purchaser and agrees to make available to Purchaser and
its agents all of the books, files and records relating to the Premises which
are in the possession or under the control of Seller.
17.04 Purchaser hereby indemnifies and agrees to defend and hold Seller
harmless from all loss, cost (including, without limitation, reasonable
attorneys' fees), claim or damage caused by the inspection of the Premises by
Purchaser, its agents, consultants or representatives.
17.05 TIME SHALL BE OF THE ESSENCE WITH RESPECT TO PURCHASER'S ACTIONS
PURSUANT TO THIS SECTION 17. In the event Purchaser shall (i) fail to have the
Premises inspected prior to the expiration of the Due Diligence Period, (ii)
fail to deliver a copy of the Reports to Seller prior to the expiration of the
Due Diligence Period or (iii) fail to give the Termination Notice prior to the
expiration of the Due Diligence period, Purchaser shall be deemed to have waived
the right to cancel this contract as provided in 17.02.
Section 18. Miscellaneous Provisions
18.01 If consent of the Existing Mortgagee(s) is required under 2.03 (b),
Purchaser shall not assign this contract or its rights hereunder without the
prior written consent of Seller. No permitted assignment of Purchaser's rights
under this contract shall be effective against Seller unless and until an
executed counterpart of the instrument of assignment shall have been delivered
to Seller and Sellers shall have been furnished with the name and address of the
assignee. The term "Purchaser" shall be deemed to include the assignee under any
such effective assignment.
18.02 This contract embodies and constitutes the entire understanding
between the parties with respect to the transaction contemplated herein, and all
prior agreements, understandings, representations and statements, oral or
written, are merged into this contract. Neither this contract nor any provision
hereof may be waived, modified, amended, discharged or terminated except by an
instrument signed by the party against whom the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only to
the extent set forth in such instrument.
18.03 This contract shall be governed by, and construed in accordance
with, the law of the State of New York.
18.04 The captions in this contract are inserted for convenience of
reference only and in no way define, describe or limit the scope or intent of
this contract or any of the provisions hereof.
18.05 This contract shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs or successors and permitted
assigns.
18.06 This contract shall not be binding or effective until properly
executed and delivered by Seller and Purchaser.
18.07 As used in this contract, the masculine shall include the feminine
and neuter, the singular shall include the plural and the plural shall include
the singular, as the context may require.
18.08 If the provisions of any schedule or rider to this contract are
inconsistent with the provisions of this contract, the provisions of such
schedule or rider shall prevail. Set forth in Schedule D is a list of any and
all schedules and riders which are attached hereto but which are not listed in
the Table of Contents.
52
IN WITNESS WHEREOF, the parties hereto have executed this contract as of the
date first above written.
Seller: Shellbar, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
Vice President and Treasurer
Purchaser: Flatbush Federal Savings and
Loan Association
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
President
53
Receipt by Escrowee
The undersigned Escrowee hereby acknowledges receipt of $170,000.00, by check
subject to collection, to be held in escrow pursuant to 2.05.
Xxxx X. Xxxxxxxxxxx, Esq. P.C.
------------------------------
54
Schedule A
DESCRIPTION OF PREMISES
(to be attached separately and to include tax map designation)
55
Schedule B
PERMITTED EXCEPTION
1. Zoning___________________regulations and ordinances which are not violated
by the existing structures or present use thereof and which do not render
title uninsurable.
2. Consents by the Seller or any former owner of the remises for the erection
of any structure or structures on, under or above any streets on which do
not render title uninsurable..
3. [INTENTIONALLY OMITTED BY PARTIES]
4. Leases and Tenancies specified in the Rent Schedule and any new leases or
tenancies not prohibited by this contract.
5. Unpaid installments of assessments not due and payable on or before the
Closing Date.
6. [INTENTIONALLY OMITTED BY PARTIES]
7. (a) Rights of utility companies to lay, maintain, install and repair
pipes, lines, poles, conduits, cable boxes and related equipment on, over and
under the Premises, provided that none of such rights imposes any monetary
obligation on the owner of the Premises.
(b) Encroachments of xxxxxx, areas, cellar steps, trim cornices, lintels,
window xxxxx, awnings, canopies, ledges, fences, xxxxxx, coping and retaining
walls projecting from the Premises over any street or highway or over any
adjoining property and encroachments of similar elements projecting from
adjoining property over the Premises.
(c) Revocability or lack of right to maintain vaults, coal chutes,
excavations or sub-surface equipment beyond the line of the Premises.
(d) Any state of facts that any accurate survey would disclose, provided
that such facts do not render title unmarketable. For the purposes of this
contract, none of the facts shown on the survey, if any, identified below shall
be deemed to render title unmarketable, and Purchaseer shall accept title
subject thereto:
(e) Property Delivered "AS IS" except as otherwise stated herein.
(f) Property Subject to any existing leases and tenancies.
56
Schedule C
PURCHASE PRICE
The Purchase Price shall be paid as follows:
(a) By check subject to collection, the receipt of
Which is hereby acknowledged by Seller: $ 170,000.00
(b) By check or checks delivered to Seller at the
Closing in accordance with the provisions of
2.02: $ 1,530,000.00
(c) By acceptance of title subject to the following
Existing Mortgages(s): $ 0.00
(d) By execution and delivery to Seller by Purchaser
or a note secured by a Purchase Money Mortgage $ 0.00
Purchase Price $ 1,700.000.00
57
Schedule D
MISCELLANEOUS
1. Title insurer designed by the parties (1.02): Any Reputable Title Company
Licensed in New York State
2. Last date for consent by Existing mortgagee(s (2.03(b):
3. Maximum Interest Rate of any Refinances Mortgage (2.04(b):
4. Prepayment Date on or after which Purchase Money Mortgage may be prepaid
(2.04(c):
5. Seller's tax identification number (2.05):
6. Purchaser's tax identification number (2.05):
7. Scheduled time and date of Closing (3.01): September 30, 2005 12:00 p.m.
8. Place of Closing (3.01): Xxxx X. Xxxxxxxxxxx, Esq. P.C. 0000 Xxx Xxxxxxx
Xx., Xxxxx 000, Xxxxxxxx, Xxx Xxxx
9. Assessed valuation of Premises (4.10):
10. Fiscal year and annual real estate taxes on Premises (4.10):
11. Tax abatements or exemptions affecting Premises (4.10):
12. Assessments on Premises (4.13):
13. Maximum Amount which Seller must spend to cure violations, etc. (7.02)
$500.00
14. Maximum expense of Seller to cure title defects, etc. (13.02): $500.00
15. Broker, if any (14.01): None
16. Party to pay broker's commission (14.01):
17. Address for notices (15.01):
If to Seller: Shellbar, Inc
0000 Xxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxx 00000
With a copy to Seller's attorney: Xxxx X. Xxxxxxxxxxx, Esq. P.C.
0000 Xxx Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
If to Purchaser: Flatbush Federal Savings and Loan Association of Brooklyn
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
With a copy to Purchaser's attorney: Xxxxx X. Xxxxx, Esq.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, Xxx Xxxx 00000
58
18. Limitation Date for actions based on Seller's surviving representations
and other obligations (16.01):
19. Additional schedules or Riders (17.08):
59
Schedule E
RENT SCHEDULE
(to be attached separately)
60
Schedule F
FORM OF ESTOPPEL LETTER
(To be attached separately)
61
RIDER TO CONTRACT OF SALE DATED SEPTEMBER 2005
SHELLBAR, INC., Seller(S)
FLATBUSH FEDERAL SAVINGS & LOAN ASSOCIATION, Purchaser(S)
PREMISES: 0000 00XX XXXXXX, XXXXXXXX, XXX XXXX
The Purchaser has had a Phase I Environmental Site Assessment (ESA) of the
premises conducted by Xxxxxxx Engineering Consultants, PC and a copy of the ESA
report dated September 6, 2005 has been provided to the Seller. Said report
revealed de minimis conditions in the premises which, although not considered
Recognized Environmental Conditions (REC), the engineer has recommended
remedying.
The Seller has agreed to remedy the conditions contained in the ESA report and
toward that end has contracted with Safety Environmental Company of New York,
Inc. to perform the remediation in accordance with the terms and condition of
their Reversed (sic) Proposal dated September 16, 2005. The Seller agrees Safety
Environmental shall perform the tasks as set forth in their September 16, 2005
proposal and that Seller will be responsible for payment thereof.
The Purchase shall advance payment of the expenses of Safety Environmental
Company of New York, Inc. and shall receive a credit for said payments at the
closing of title to the property, or, if said closing shall occur after October
1, 2005, then said credit shall be taken by the Purchaser from the rent due the
Seller for the month of October. The limit of Sellers liability is $5,000.00.
By: /s/ Xxxxx Xxxxxxxx, Vice President, Treasurer
---------------------------------------------
SHELLBAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx, President
------------------------------------
FLATBUSH FEDERAL SAVINGS
& LOAN ASSOCIATION
62
This Agreement Between THE XXXX X. XXXXXXXX TRUST
C/O XXXX XXXXXXXX residing at 0000 Xxx Xxxxxx Xxx, Xxx Xxx Xxxxx, Xx., as
Landlord, and
FLATBUSH FEDERAL SAVINGS AND LOAN ASSOICATION OF BROOKLYN, a banking institution
with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, as Tenant
Witnesseth: The Landlord hereby leases to the Tenant the following premises:
ENTIRE PREMISES KNOWN AS 0000-00XX XXXXXX, XXXXXXXX, XXX XXXX
For the term of TEN (10) YEARS
To commence from the 1st day of October 1999 and to end on the 30th day of
September, 2009 to be used end occupied only for banking purposes and/or any
other legal use
Upon the conditions and covenants following:
1st. That the Tenant shall pay the annual rent and additional rent as set forth
in the annexed Rent Schedule
2nd. And at the end or other expiration of the term, shall deliver up the
demised premises in good order or condition, damages' by the elements excepted.
3rd. That the Tenant shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations, and requirements of the Federal, State
and Local Governments and of any and all their Departments and Bureaus
applicable to said premises, for the correction, prevention, and ebatement of
nuisances or other grievances, in, upon, or connected with said premises during
said term; and shall also promptly comply with and execute all rules, orders and
regulations of the New York Board of fire Underwriters, or any other similar
body, at the Tenant's own cost and expense.
4th. [INTENTIONALLY OMITTED BY PARTIES]
5th. [INTENTIONALLY OMITTED BY PARTIES]
6th. The said Tenant agrees that the said Landlord and the Landlords agents and
other representatives shall have the right to enter into and upon said premises,
or any part thereof, at all reasonable hours for the purpose of examining the
same of making such repairs or alterations therein as may be necessary for the
safety and preservation thereof.
7th The Tenant also agrees to permit the Landlord or the Landlord's agents to
show the premises to persons wishing to hire or purchase the same; and the
Tenant further agrees that on and after the sixth month, next preceding the
expiration of the term hereby granted, the Landlord or the Landlord's agents
shall have the right to place notices on the front of said premises, or any part
thereof, offering the premises, "To Let" or "For Sale", and the Tenant hereby
agrees to permit the same to remain thereon without hindrance or molestation.
8th. That if the said premises, or any part thereof shall be deserted or become
vacant during said term, or if any default be made in the payment of the said
rent or any part thereof, or if any default be made in the performance of any of
the covenants herein contained, the Landlord or representatives may re-enter the
said premises by force, summary proceeding or otherwise, and remove all persons
there from, without being liable to prosecution therefore, and the Tenant hereby
expressly waives the service of any notice in writing of intention to re-enter,
and the Tenant shall pay at the same time as the rent becomes payable under the
terms hereof a sum equivalent to the rent reserved herein, and the Landlord may
rent the premises on behalf of the Tenant, reserving the right to rent the
premises for a longer period of time then fixed in the original lease without
releasing the original Tenant from any liability, applying any moneys collected,
first to the expense of resuming or obtaining possession, second to restoring
the premises to a rentable condition, and then to the payment of the rent and
all other charges due and to grow due to the Landlord, any surplus to be paid to
the Tenant, who shall remain liable for any deficiency.
63
9th. [INTENTIONALLY OMITTED BY PARTIES]
10th. That the Tenant shall neither encumber nor obstruct the sidewalk in front
of, entrance, to, or halls and stairs of said premises, nor allow the same to be
obstructed or encumbered in any manner, and shall promptly remove ice & snow.
11th. [INTENTIONALLY OMITTED BY PARTIES]
12th. That the Landlord is exempt from any and all liability for any damage or
injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of said
building or from any damage or injury resulting or arising from any other cause
or happening whatsoever unless said damage or injury be caused by or be due to
the negligence of the Landlord.
13th. That if default be made in any of the covenants herein contained, then it
shall be lawful for the said Landlord to reenter the said premises, and the same
to have again, re-posses and enjoy. The said Tenant hereby expressly waives the
service of any notice in writing of intention to re-enter.
14th. That this instrument shall not be a lien against said premises in respect
to any mortgages that are now on or that hereafter may be placed against said
premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease,
irrespective of the date of recording and the Tenant agrees to execute without,
cost, any such instrument which may be deemed necessary or desirable to further
effect the subordination of this lease to any such mortgage or mortgages, and a
refusal to execute, such instrument shall entitle the Landlord, or the Landlord
assigns and legal representatives to the option of cancelling this lease without
incurring any expense or damage and the term hereby granted is expressly limited
accordingly.
15th. [INTENTIONALLY OMITTED BY PARTIES]
16th. [INTENTIONALLY OMITTED BY PARTIES]
17th. It is expressly understood and agreed that in case the demised premises
shall be deserted or vacated, or if default be made in the payment of the rent
or any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this lease or if default be
made in the performance of any of the covenants and agreements in this lease
contained on the part of the Tenant to be kept and performed, or if the Tenant
shall fail to comply with any of the statutes, ordinances, rules, orders,
regulations and requirements of the Federal, State and Local Governments or of
any and all their Departments and Bureaus, applicable to said premises, or if
the Tenant shall file or there he filed against Tenant a petition in bankruptcy
or arrangement, or Tenant he ad indicated a bankrupt or make an assignment for
the benefit of creditors or take advantage of any insolvency act, the Landlord
may, if the Landlord so elects, at any time thereafter terminate this lease and
the term hereof, on giving to the Tenant five days' notice in writing of the
Landlord's intention so to do, and this lease and the term hereof shall expire
and come to an end on the date fixed in such notice as if the said date were the
date originally fixed in this lease for the expiration hereof. Such notice may
be given by mail to the Tenant addressed to the demised premises.
18th. [INTENTIONALLY OMITTED BY PARTIES]
19th. [INTENTIONALLY OMITTED BY PARTIES]
20th. The failure of the Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that the Landlord may have, and shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and covenants
herein contained. This instrument may not be changed, modified, discharged or
terminated orally.
21st. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purposes, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim against
Landlord for the value of any unexpired term of
64
said lease. No part of any award shall belong to the Tenant. The tenant shall be
entitled, however, to any fixture award, provided same does not diminish the
landlord's award for taking of the real estate.
22nd. If after default in payment of rent or violation of any other provision of
this lease, or upon the expiration of this lease, the Tenant moves out or is
dispossessed and fails to remove any trade fixtures or other property prior to
such said default, removal, expiration of lease, or prior to the issuance of the
final order or execution of the warrant, then and in that event the said
fixtures and property shall be deemed abandoned by the said Tenant and shall
become the property of the Landlord.
23rd. In the event that the relation of the Landlord and Tenant may cease or
terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable if able and
shall pay in monthly payments the rent which accrues subsequent to the re-entry
by the Landlord, and the Tenant expressly agrees to pay as damages for the
breach of the covenants herein contained, the difference between the rent
reserved and the rent collected and received, if any, by the Landlord during the
remainder of the unexpired term, such difference or deficiency between the rent
herein reserved and the rent collected if any, shall become due and payable in
monthly payments during the remainder of the unexpired term, as the amounts of
such difference or deficiency shall from time to time be ascertained: and it is
mutually agreed between Landlord and Tenant that the respective parties hereto
and shall hereby do waive trail by jury in any action, proceeding or
counterclaims brought by either of the parties against the other on any matters
whatsoever arising out of or in any way connected with this lease, the Tenant's
use or occupancy of said premises and/or any claim of injury or damage.
24th. The Tenant waives all rights to redeem under any law of the State of New
York.
25th. This lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in nowise be affected, impaired or excused because Landlord is
unable to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if landlord is prevented or delayed from so
doing by reason of governmental preemption in connection with a National
Emergency or in connection with any rule, order or regulation of any department
or subdivision there of any governmental agency or by reason of the condition of
supply and demand which have been or are affected by war or other emergency.
26th. No diminution or abatement of rent, or other compensation, shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its appliances, nor for any space
taken to comply with any law, ordinance or order of a governmental authority. In
respect to the various "services," if any, herein expressly or impliedly agreed
to be furnished by the Landlord to the Tenant, it is agreed that there shall be
no diminution or abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" when such interruption or
curtailment shall be due to accident, alterations or repairs desirable or
necessary to be made or to inability or difficulty in securing supplies or labor
for the maintenance of such "service" or to some other cause, not gross
negligence on the part of the Landlord. No such interruption or curtailment of
any such "service" shall be deemed a constructive eviction. The Landlord shall
not be required to furnish, and the Tenant shall not be entitled to receive, any
of such "services" during any period wherein the Tenant shall be in default in
respect to the payment of rent. Neither shall there be any abatement or
diminution of rent because of making of repairs, improvements or decorations to
the demised premises after the date above fixed for the commencement of the
term, it being understood that rent shall, in any event, commence to run at such
date so above fixed.
27th. [INTENTIONALLY OMITTED BY PARTIES]
65
SEE ATTACHED RIDER
Upon the expiration of this lease, or earlier termination, tenant shall restore
the premises to the original condition of the premises in 1974.
And the said Landlord doth covenant that the said Tenant on paying the
said yearly rent, and performing the covenants aforesaid, shall and may
peacefully and quietly have, hold and enjoy the said demised premises for the
term aforesaid, provided however, that this covenant shall be conditioned upon
the retention of title to the premises by the Landlord.
And it is mutually understood and agreed that the covenants and agreements
contained in the within lease shall be binding upon the parties hereto and upon
their respective successors, heirs, executors and administrators.
In Witness Whereof, the parties have interchangeable set their hands and
seals (or caused these presents to be signed by proper corporate officers and
caused their proper corporate seal to be hereto affixed) this day
Signed, sealed and delivered
In the present of
By: /s/ Xxxx X. Xxxxxxxx L.S.
-------------------------
THE XXXX X. XXXXXXXX TRUST,
LANDLORD
BY: XXXX XXXXXXXX L.S.
------------------
By: /s/ Xxxxxxx X. Xxxxxxxxxx L.S.
------------------------------
FLATBUSH FEDERAL SAVINGS & LOAN
ASSOCIATION, TENANT
BY: XXXXXXX X. XXXXXXXXXX,
AS PRESIDENT
66
RIDER TO LEASE dated BETWEEN
XXXX X. XXXXXXXX TRUST of 0000 Xxx Xxxxxx Xxx, Xxx Xxx Xxxxx, Xx. As Landlord,
and FLATBUSH FEDERAL SAVINGS & LOAN ASSOCIATION OF BROOKLYN, a banking
institution with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX., as Tenant.
Premises: 0000 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxx
28th. The tenant, at its own cost and expense, may from time to time, during the
term of this lease, make any installations, alterations or additions to the
premises which, in its sole judgment, shall be necessary or desirable for the
conduct of its business, and may install such trade fixtures as it may deem
appropriate. Any and all such alterations shall be made in accordance with the
rules, regulations, ordinances and requirements of the various municipal state
and federal bureau, boards and/or commissions having jurisdiction of the
premises. The tenant agrees to keep the premises free from any and all
mechanic's and other liens arising out of any such alterations and agrees to
indemnify the landlord from any loss, damage or expense by reason of any
mechanic's or other liens. Any mechanic's liens filed against the demised
premises for work or materials claimed to have been done or furnished to the
tenant shall be discharged by the tenant, at its own expense, within twenty (20)
days after demand, provided, however, that the tenant May cause the same to be
discharged by the filing of a surety bond required by law for the discharge of a
mechanic's lien.
29th. The tenant, shall take good care of the demised premises and, at its sole
cost and expense, make all repairs to the roof, sidewalk, doors, glass,
electrical system, plumbing and heating plants and water mains and, at the end
or other expiration of the term, shall deliver up the demised premises in good
order and condition. Any additions to or alterations of the premises or
replacements made of the roof, sidewalk, doors, glass, plumbing and heating
plants and water mains or electrical wiring shall become part of the realty and
belong to the landlord, provided, however, that nothing herein shall affect
tenant's rights with respect to trade fixtures and other movable property.
30th. The tenant shall provide heat for the premises, at its own cost and
expense, and shall obtain all permits required for the heating system, at its
own expense.
31st. All notices, demands and requests which may or are required to be given by
either party, pursuant to the terms of this Lease, shall be in writing. Notices
by the landlord to the tenant shall be deemed to have been properly given if and
when sent by United States Registered or Certified Mail, postage prepaid,
addressed to the tenant at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, or at
such other place or places as the tenant may from time to time designate, in
writing. All notices by to the tenant to the landlord shall be deemed to have
been properly given if and when sent by United States Registered or Certified
mail, postage prepaid, addressed to the landlord, at 6370 San Michel Xxx, Xxx
Xxx Beach, Fl., or at such other place or places as the landlord may from time
to time designate, in writing.
32nd. In case of damage to the building on the leased premises by fire or other
case, the tenant shall repair the damage with reasonable dispatch after notice
of the damage. In determining what constitutes reasonable dispatch,
consideration shall be given to delays caused by strikes, adjustment of
insurance and other causes beyond the tenant's control. If the damage shall
render the premises untenantable, in whole or in part, there shall be an
apportionment of rent until the damage shall have been repaired, provided
however, that the tenant shall at its own cost and expense furnish the landlord
with a policy of rent insurance insuring the landlord against any loss of rent
by reason of such damage or the apportionment during the term of this lease. The
fire insurance policies to be provided by the tenant pursuant to the provisions
of Paragraph 3. of the Rent Schedule hereunto annexed shall be payable to the
landlord, the tenant and to any mortgagee as their interest may appear, and in
the event of loss, the proceeds thereof shall be payable to the tenant upon
repair of the damage and the landlord agrees to execute any and all necessary
papers to effect payment thereof to the tenant. It is further agreed that, if
the property is damaged during the last two (2) years of the term of this lease,
and the damage is so extensive as to amount practically to a total destruction
of the lease premises, either party shall have the right to terminate this lease
on ten (10) days' notice to the other, which notice shall be given within thirty
(30) days after the date of the loss and, if such notice shall be given, this
lease shall cease and come to an end and the rent shall be apportioned to the
time of the damage. In the event that this lease shall be cancelled by the
tenant pursuant to the terms of this paragraph, the tenant shall have no
obligation to repair the damage, but, in the event, the proceeds of the fire
insurance hereinbefore described shall be payable to the landlord and tenant
agrees to execute any and all necessary papers to effect payment thereof to the
landlord.
67
33rd. Anything in this lease to the contrary notwithstanding, it is understood
and agreed that tenant shall not be in default hereunder unless and until tenant
shall be given at least ten (10) days' written notice, with respect to the
failure to pay any fixed or additional rent hereunder, and with respect to
defaults other than those involving the payment of money as aforesaid, tenant
shall not be in default unless an until thirty (30) days' written notice shall
have been given with respect to defaults not involving the payment of money;
provided, however, in case of a default which cannot with due diligence be cured
within such thirty (30) days, tenant shall only be deemed to be in default
hereunder if it shall fail to proceed with all due diligence within such (30)
day period to cure such default and thereafter to complete the curing of the
same with all due dispatch.
34th. Tenant shall have the right to assign this lease or sublet all or any part
of the demised premises without first obtaining landlords' consent, written or
otherwise; provided, however, that in connection with any assignment of this
lease, tenant's assignee shall assume, in writing, all of the terms and
provisions hereof and a written duplicate original of such assignment and
assumption agreement shall be delivered to the landlord within ten (10) days
after the execution thereof and, further provided that no assignment of this
lease or subletting of all or any part of the premises shall in any way release
or relieve present tenant with respect to the performance of its obligations
hereunder. See Paragraph 39
35th. Landlord shall request any future mortgagee to agree, in writing, that in
the event of default by landlord under said mortgage and the foreclosure
thereof, the mortgagee shall not disturb tenant's possession of the demised
premises, provided tenant continues to pay its rent as herein provided.
36th. Notwithstanding the provisions of paragraph 14 hereof, it is understood
and agreed as follows:
a) Landlord may encumber the premises as hereinafter stated in this
paragraph.
b) With respect to future mortgages, this Lease shall be subordinate only
to a mortgage made to an institutional lender (commercial bank, savings bank,
savings and loan association, insurance company and similar), provided said
mortgage does not exceed the sum One Hundred and Fifty Thousand Dollars
($150,000.00), and provided the interest rate on said mortgage does not exceed
eight and one-half (8 1/2%) percent.
c) The payments for interest and amortization required by said mortgage
shall not exceed the amount of rent provided by Paragraph 1st of the Rent
Schedule of this Lease.
d) In the event of a default in the payment of interest or amortization,
the tenant shall have the right to cure any such default and deduct any amount
paid to the mortgagee form the rent next accruing.
37th. The tenant agrees, at the end of the term of this Lease, to deliver the
premises to the landlord in substantially the same condition as received in
1974, reasonable wear and tear excepted. In the event that the legal occupancy
of the premises shall be changed by the tenant, it is understood and agreed
that, if required by the landlord upon termination of the lease, the occupancy
of the premises shall be restored to its present legal occupancy.
38th. It is understood that the tenant is leasing the demised premises for
purposes of operating a branch banking office. The tenant represents that it has
obtained permission from the Federal Home Loan Bank Board to open and operate a
branch in the general vicinity of the demised premises. It is agreed that the
within lease shall be conditioned upon the approval of the Federal Home Loan
Bank Board to operate the said branch at this specific location. The tenant
agrees to promptly apply for approval of the said location and, in the event
that said approval shall be denied, the tenant shall have the right to cancel
this lease and, in the event of such cancellation, the deposit made on signing
this lease shall be retained by the landlord and there shall be no further
obligations or liabilities between the parties.
39th. In the event that the within, Lease shall be assigned by the tenant or
that all or substantially all of the demised premises shall be subleased by the
tenant for a term of over two (2) years pursuant to the provisions of Paragraph
34th hereof, the tenant or it assignee or sub-lessee will deposit with the
landlord the sum of $25,000.00 as security for the full and faithful performance
by the tenant, its assignee or sub-lessee of all of the terms, covenants and
conditions of this lease upon the tenant's part to be performed, which said sum
shall be returned to the tenant after the time fixed as expiration of the term
herein or the expiration of the options herein provided, provided, that the
tenant, its assignee or sub-lessee has fully performed all of the terms of this
Lease. The landlord shall have the right to transfer the security in the event
of a sale of the premises to the vendee for the benefit of the tenant, and in
the event of such transfer, the landlord shall be considered released from all
liability for the return of such security and the tenant, its assignee or
sub-lessee agrees to
68
look to the new owner for the return of such security. The amount of said
security shall be deposited in an interest bearing account with any depositary
requested by the tenant and interest or dividends credited to said account shall
be the property of the tenant, its assignee or sub-lessee annually on or before
January 15 in each year during the term hereof. It is understood that this
provision for the deposit of security shall not be applicable in the event of a
merger by the tenant with another banking corporation or the acquisition of the
tenant's assets by another banking corporation continuing to do a branch banking
business on the premises.
40th. The landlord represents that he is the owner of the demised premises and
has good title in fee simple thereto and that there are no liens or encumbrances
against the property. The landlord agrees to furnish to the tenant any
additional documents, affidavits or assurances of title so that the tenant may
obtain, at its own cost and expense, from any licensed title company doing
business in the State of New York, a policy of leasehold title insurance without
exception.
THE XXXX X. XXXXXXXX TRUST, LANDLORD
By: /s/ Xxxx X. Xxxxxxxx
--------------------
By: XXXX XXXXXXXX
Flatbush Federal Savings and Loan
Association of Brooklyn
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
By: Xxxxxxx X. Xxxxxxxxxx, President
Tenant
69
RENT SCHEDULE
TO
RIDER BETWEEN XXXX X. XXXXXXXX TRUST, as Landlord, and FLATBUSH FEDERAL SAVINGS
& LOAN ASSOCIATION OF BROOKLYN, as Tenant. Dated October 1, l999, FOR PREMISES
#0000 00XX XXXXXX, XXXXXXXX, NEW YORK.
1. The tenant shall pay the annual rent as hereinafter set forth; said rent to
be paid in equal monthly payments, in advance, on the 1st day of each and every
month during the term of this Lease. Rents thereinafter stated are predicated
upon gross annual payments; however, payments shall be made monthly; each
payment being 1/12th of the said annual rental charges.
A. SIXTY-SIX THOUSAND DOLLARS ($66,000.00) per annum during the first two
and one-half (2 1/2 ) years, commencing October 1, 1999, and ending March
31, 2002.
B. SIXTY-NINE THOUSAND THREE-HUNDRED DOLLARE ($69,300.00) per annum during
the next two and one-half (2 1/2) years, commencing April 1, 292, and
ending September 30, 2004.
C. SEVENTY-TWO THOUSAND SEVEN-HUNDRED SIXTY FIVE DOLLARS ($72,765.00) per
annum during the next two and one-half (2 1/2) years, commencing October
1, 2004, and ending March 31, 2007.
D. SEVENTY SIX THOUSAND FOUR-HUNDRED THREE DOLLARS ($76,403.00) per annum
during the next two and one-half years, commencing April 1, 2007 and
ending September 30, 2009.
2. Tenant shall pay as additional rent any and all taxes or assessments levied
against the premises by the City of New York, or any other municipal authority,
during the term of this Lease. Said taxes of or assessments shall be paid within
thirty (30) days after the same shall become due and payable and the tenant
shall exhibit proof of payment of said taxes to the landlord promptly upon
demand. The tenant, at its own cost and expense, shall have the right, as agent
of the landlord, to apply for reduction of assessed valuation of the property
for any tax year during the terms of this Lease, and the landlord agrees to
execute any and all papers necessary to enable the tenant to prosecute such
proceedings, provided, however, that the tenant agrees to indemnify the landlord
against any loss, cost or damage by reason of such proceedings.
3. The tenant shall keep the building on the demised premises insured against
loss or damage by fire or other risks such as would be ordinarily covered by a
full extended coverage endorsements, in such amounts as may from time to time be
determined to be required to cover the full insurable value of the premises and
to pay the premiums for such insurance during the term of this lease as
additional rent. The said insurance shall provide that loss, if any, shall be
payable to the landlord/and/or the tenant/and/or the holder of any mortgage that
may be a lien on the premises during the term hereof as their interest may
appear. The original policy or policies shall be delivered to the landlord not
less than ten (10) days prior to the inception date thereof. The tenant shall
not do or permit to be done anything on the demised premises which will
invalidate or be in conflict with the aforesaid insurance policy or policies and
the tenant at its own cost and expense shall comply with all regulations and
requirements of the New York Board of Fire Underwriters or any similar body. In
the event that the tenant shall fail to obtain and deliver said policies or to
pay any renewal premium therefore and the amount of said premiums shall be due
and payable by the tenant to the landlord as additional rent within ten (10)
days after demand.
Should an appraisal be required to determine the amount of fire insurance to be
fixed, then both landlord and tenant agree to accept the findings of a reputable
recognized New York actuarial agent.
4. The tenant shall maintain general liability insurance against claims for
bodily injury or death or property damage occurring upon, in or about the
demised premises, such insurance to have limits or not less than $1,000,000.00
in respect to bodily injury or death to any one person, and up to $2,000,000.00
in respect to any one occurrence, and $500,000.00 in respect to property damage.
The said policy or policies shall name both the landlord and the tenant as
assureds. The tenant agrees to obtain the said policy or policies and pay the
premiums therefore as additional rent, and to deliver a
70
certificate thereof to the landlord. In the event that the tenant shall fail to
obtain said policy or to pay any renewal premium therefore, then the landlord
may obtain the required policy and pay the premium for the account of the tenant
and the amount of said premium shall be payable by the tenant to the landlord as
additional rent within ten (10) days after demand. The tenant may carry such
insurance under its blanket coverage.
5. The tenant shall pay as additional rent, the rent or charge which may during
the demised term be assessed or imposed for water used or consumed in, or on the
said premises, whether determined by meter or otherwise, within thirty (30) days
after the same shall be assessed or imposed, and will also pay the expense for
the setting of a water meter in the said premises, should the latter be
required. The tenant shall also pay as additional rent any sewer rent or charge
imposed upon the building. The tenant shall exhibit proof of payment of any such
rent or charge for water or sewer to the landlord promptly upon demand.
6. The landlord agrees, that the tenant may record a summary of this Lease in
the usual form without expressing the terms and conditions thereof and the
landlord agrees to execute any such summary.
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxx Trust, Landlord
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Flatbush Federal Savings and
Loan Association of Brooklyn, Tenant
By: Xxxxxxx X. Xxxxxxxxxx, President
00
Xxxxx xx Xxxxxxx
Xxxxxx xx Xxxx Xxxxx
Xx the 30th day of March 1999, before me personally came XXXX XXXXXXXX to
me known and known to me to be the individual described in, and who executed,
the foregoing instrument and he acknowledged to me that he executed the same.
By: /s/ Xxxxxxx Xxxxxxxxx -Seal-
---------------------
State of New York
County of Kings
On the 6th day of April 1999, before me personally came XXXXXXX X.
XXXXXXXXXX to me known, who, begin by me duly sworn, did depose and say that he
resides at No. 00-00 000xx Xxxxxx, Xxxxxxx, Xxx Xxxx, 00000 that he is the
PRESIDENT of FLATBUSH FEDERAL SAVINGS & LOAN ASSOCIATION OF BROOKLYN the
corporation mentioned in, and which executed, the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation and that he signed his name thereto by like order.
By: /s/ Xxxxxx Xxxxxxx
------------------
In Consideration of the letting of the premises within mentioned to the
within named Tenant and the sum of $100 paid to the undersigned by the within
named Landlord, the undersigned do hereby covenant and agree, to and with the
Landlord and the Landlord's legal representatives, that if default shall as any
time he made by the said Tenant in the payment of the rent and the performance
of the covenants contained in the within lease, on the Tenant's part to be paid
and performed, that the undersigned will well and truly pay the said rent, or
any arrears thereof, that may remain due unto the said Landlord, and also pay
all damages that may arise in consequence of the non-performance of said
covenants, or either of them without requiring notice of any such default from
the said Landlord. The undersigned hereby waives all right to trail by jury in
any action or proceeding hereinafter instituted by the Landlord, to which the
undersigned may be a party.
In Witness Whereof the undersigned he set hand and seal this day of .19
WITNESS _______________________________________L.S.
72
