Exhibit 10.7
PURCHASE AND SALE AGREEMENT - Farmingdale Facility
This Purchase and Sale Agreement (this "Agreement") made as
of the 17th day of April, 1996, between Noodle Kidoodle, Inc., a
Delaware corporation, as successor by merger to Noodle Kidoodle,
Inc. f/k/a/ Xxxxxxxx Bros., Inc., (a New York corporation), having
an office at 000 Xxxxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000
("Seller"), and Reckson Operating Partnership, L.P., a New York
partnership, having an office at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx 00000 ("Purchaser").
RECITALS:
1. Sale and Purchase. Seller shall sell and Purchaser shall
purchase, subject to the terms and conditions herein, that
certain parcel of land more particularly described on Schedule A
attached hereto and made a part hereof, located at 000 Xxxxx
Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000, together with all the
improvements thereon including:
(i) Seller's interest in all buildings, building fixtures
(including all mechanical, electrical, heating and plumbing
systems owned by Seller located on the subject premises and used
in connection with the operation thereof), utilities and other
improvements existing thereon, excluding, however, all personal
property of the Seller including, without limitations, all
equipment, furniture and furnishings.
(ii) Seller's right, title and interest, if any, in and
to: any strips or gores of land adjoining the subject premises;
any land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the subject premises, to
the center line thereof; any condemnation award made or to be
make in lieu thereof and any unpaid award for damage to the
subject premises by reason of change of grade of any street.
Seller will, upon demand, execute and deliver to Purchaser at the
Closing, all proper instruments for the conveyance of such right,
title and interest and for the assignment and collection of any
such awards, if applicable; and
(iii) Seller's interest, if any, in all easements, rights
of way or uses, privileges, licenses, appurtenances and rights
belonging or appertaining to the subject premises.
The foregoing property to be conveyed to Purchaser is hereinafter
referred to collectively as the "Premises".
2. Purchase Price. The purchase price payable by Purchaser
to Seller for the Premises (the "Purchase Price") shall be Eight
Million Three Hundred Five Thousand Dollars ($8,305,000) payable
as follows:
(a) $700,000 shall be paid contemporaneously with the
execution of this Agreement (the "Deposit"), such Deposit to be
paid to and held in escrow pursuant to Section 3 hereof by First
American Title Insurance Company, the Purchaser's title company,
(hereinafter "First American" or the "Escrowee");
(b) On the date of the closing of this sale (the
"Closing"), the Purchaser shall pay by bank or certified check
drawn on a member bank of the New York Clearing House, or by wire
transfer of Federal Funds, the sum of $7,605,000.00 to Seller or
its designee(s) subject to adjustment as provided herein.
3. Escrow. (a) The Deposit shall be paid by bank or
certified check drawn to the order of and delivered to Escrowee,
to hold in escrow. Escrowee shall deposit the Deposit in an
interest-bearing escrow account separately designated with
reference to Seller and Purchaser. Escrowee shall hold and
distribute the Deposit as provided in this Agreement. The party
receiving any interest earned on the Deposit shall pay any income
taxes thereon. Purchaser represents and warrants that its
federal tax identification number is 00-0000000 and Seller
represents and warrants that its federal tax identification
number is 00-0000000.
(b) Copies of all notices to be sent under Sections 5, 7,
12, 14 and 16 shall be sent to Escrowee as well.
(c) The parties acknowledge that Escrowee is acting solely
as a stakeholder at their request and for their convenience, that
Escrowee shall not be deemed to be the agent of either of the
parties and shall not be liable for any acts or omissions of any
kind, unless they are grossly negligent or taken in willful
disregard of this Agreement or in bad faith. Escrowee shall be
entitled to rely on any instrument or signature believed by it to
be genuine and may assume that any person purporting to give any
written notice or instruction in connection herewith is fully
authorized to do so by the party on whose behalf such written
notice or instruction is given. Escrowee shall not receive any
payment for handling the Deposit. Seller and Purchaser, jointly
and severally, shall indemnify, defend and hold Escrowee harmless
from and against all costs, claims, losses, liabilities and
expenses, including reasonable attorneys' fees, incurred in
connection with or arising from the performance of Escrowee's
duties hereunder, except for acts or omissions which are grossly
negligent or which are taken or suffered by Escrowee in bad
faith, or in willful disregard of this Agreement. However, as
between Seller and Purchaser, the party ultimately determined not
to be entitled to the payment of the Deposit shall bear all such
costs and expenses. Such indemnity shall survive the Closing or
other termination of this Agreement.
(d) Escrowee shall not be responsible in any manner
whatsoever for any failure or inability of Seller or Purchaser to
perform or comply with any of the provisions of this Agreement.
(e) Escrowee shall not be bound or in any way affected by
any notice of any modification or cancellation of this Agreement,
unless notice of the same is delivered to Escrowee in writing,
signed by the Seller and Purchaser and, in the case of a
modification relating to the escrow, unless such modification
shall be reasonably satisfactory to Escrowee solely with respect
to its duties as Escrowee and, in such case, approved by Escrowee
in writing.
4. Section 4 Intentionally Omitted.
5. Seller's Compliance Period
1. Between the date this Agreement is executed and June 8,
1996 ("Seller's Compliance Period"), Seller shall undertake
to do the following:
(A) Asbestos abatement in accordance with all applicable
laws and under the oversight of ATC Environmental, Inc.
("ATC"). Said asbestos abatement shall be carried out
substantially in accordance with the Project Manual for
Asbestos Abatement and Re-Fireproofing dated March, 1996
prepared by ATC and by either of the contractors listed on
Schedule C. At the completion of the abatement project,
Seller shall deliver to Purchaser a written statement from
ATC that the asbestos abatement project has been lawfully
carried out and that all accessible asbestos containing
spray on fire proofing material has been removed and
disposed of in accordance with law and all inaccessible
asbestos was sealed and enclosed. Seller shall also deliver
the so-called "close-out report" which includes air
monitoring data documenting compliance with 12 NYCRR 56-17.8
and a waste disposal manifest and a detailed survey
identifying all locations where friable forms of asbestos
remain in the building.
(B) Take such actions with respect to the underground
petroleum storage tanks located on the Premises so that
Seller shall deliver to Purchaser a statement from the
County of Suffolk in the form attached hereto as Schedule I
(or any similar, substitute form established by the County
of Suffolk) with the first alternative listed checked off.
If the second alternative is checked off, then, to comply
with the requirements of this clause (B), Seller shall
deliver to Purchaser the letter in the form attached hereto
as Schedule I-A from the New York State Department of
Environmental Control (or any similar, substitute form
established by the NYS Department of Environmental Control).
(C) Take such actions with respect to any septic tanks and
systems located on the Premises so that Seller shall deliver
to Purchaser a Certificate of Compliance (form P19) from the
Southwest Sewer District of Suffolk County, and Form S-9
attached hereto as Schedule II (or any similar, substitute
form established by the County of Suffolk).
2. At such time as Seller has complied with clauses (A) (B)
and (C) and copies of the certificates and/or statement have
been delivered to Purchaser, Seller's Compliance Period
shall be deemed to have ended.
3. If at the end of Seller's Compliance Period, Seller
has not completed undertaking (A), (B) and/or (C), Purchaser
shall have the right, to be exercised within 5 days of the
end of Seller's Compliance Period, to either (x) terminate
this Agreement upon written notice or (y) notify Seller that
it is willing to take title to the Premises subject to all
existing conditions including those conditions covered by
this Section 5 and the Purchase Price shall be reduced by
the amount of contract price yet to be performed as
stipulated by Seller's contractor(s). If Purchaser elects
alternative (x), the Deposit shall be returned to Purchaser
together with all accrued interest (as Purchaser's sole and
exclusive remedy) and this Agreement shall terminate and be
of no force and effect. If Purchaser elects alternative
(y), this Agreement shall continue in full force and effect
and Section 6 shall govern with respect to establishing the
Closing Date.
6. Closing
(A) Closing shall be held at the offices of Purchaser or
its counsel. The Closing Date shall be no earlier than 20 days
or later than 30 days after Seller's Compliance Period, (as it
may be extended), or such other date as the parties hereto may
otherwise agree to (provided that this Agreement has not been
previously terminated as provided herein). Purchaser shall
designate the date of Closing within that time frame by notice
given to Seller within five (5) days after the end of Seller's
Compliance Period provided that Purchaser agrees to reasonably
accommodate Seller if Seller requests an alternate date during
that time frame.
B. Deliveries at Closing.
(a) On the Closing Date, Seller shall convey the
Premises to Purchaser by executing, acknowledging (where
appropriate) and delivering to Purchaser the following documents
as may be applicable (and Purchaser shall execute, acknowledge
(where appropriate) and deliver to Seller as indicated, the
following documents):
(i) A bargain and sale deed with covenants against
Grantor's acts (the "Deed") for the Premises in recordable form
conveying fee simple title to the Premises, subject only to the
matters expressed herein and the "Permitted Encumbrances" (as
defined in Paragraph 7 of this Agreement).
(ii) An assignment, duly executed and acknowledged by
Seller, of Seller's interest in all certificates, licenses,
permits, authorizations, consents and approvals relating to the
ownership of the Premises issued by governmental authorities to
the Premises.
(iii) Such resolutions and certificates as First
American shall reasonably require as evidence of the due
authorization of the documents delivered or to be delivered at
Closing; all reasonable and customary affidavits reasonably
required by such title company to permit it to issue to Purchaser
an owner's policy of title insurance, subject to the matters
expressed herein and such other standard title exceptions.
(iv) An affidavit in form and content reasonably
acceptable to Purchaser in accordance with Section 1445 of the
Internal Revenue Code certifying that Seller is not a foreign
entity.
(v) Keys to the buildings and improvements in the
Premises in the possession or control of Seller.
(vi) The Seller's sublease executed as of the date
hereof by New Breed and Seller for a portion of the Premises
consented to by Purchaser.
(b) (i) At Closing, Seller shall deliver a certified check
or official bank check drawn on any banking institution which is
a member of the New York City Clearinghouse Association, payable
to the order of the appropriate State, City or County officer (or
at Seller's option on written notice to Purchaser given not later
than three (3) days prior to Closing, Purchaser shall provide
such check(s) and receive a credit at Closing in the amount
thereof) in the amount of any applicable transfer tax payable by
reason of the delivery or recording of the Deed (other than the
gains tax pursuant to Article 31-B of the Tax Law, which is
covered by section (b) (ii) hereof), together with any required
tax return. Purchaser agrees to duly complete the tax return as
and if required and to cause the check(s) and the tax return to
be delivered to the appropriate officer promptly (but
nevertheless within the time required by applicable law) after
Closing.
(ii) Seller agrees to comply in a timely manner with
the requirements of Article 31-B of the Tax Law of the State of
New York and the regulations applicable thereto, as the same from
time to time may be amended collectively, the "Gains Tax law")
and Seller agrees to make all necessary submissions to the N.Y.S.
Taxing Commission by April 30, 1996. Purchaser agrees to deliver
to Seller a duly executed and acknowledged Transferee
Questionnaire upon the execution of this Agreement. At the
Closing, Seller shall deliver (x) an official Statement of No Tax
Due or (y) an official Tentative Assessment and Return
accompanied by a certified check or official bank check drawn on
any banking institution which is a member of the New York City
Clearinghouse Association, payable to the order of the State Tax
Commission in the amount of the tax shown to be due thereon (it
being understood, however, that if Seller has duly elected to pay
such tax in installments, the amount so required to be paid may
be the minimum installment of such tax then permitted to be
paid). Seller shall pay all Gains Tax due under the Gains Tax Law
as well as New York State real estate transfer tax (deed stamps).
Seller shall have the right after Closing to attempt to reduce
the amount of the Gains Tax; any refund it receives shall belong
exclusively to Seller.
(iii) Seller agrees (A) to pay promptly any
installment(s) or additional tax due under the Gains Tax Law, and
interest and penalties thereon, if any, which may be assessed or
due after the Closing, (B) to indemnify and save Purchaser
harmless from and against any of the foregoing and any damage,
liability, cost or expense (including reasonable attorneys' fees)
which may be suffered or incurred by Purchaser by reason of the
non-payment thereof, and (C) to make any other payments and
execute, acknowledge and deliver such further documents as may be
necessary to comply with the Gains Tax law.
(iv) Purchaser, if request is made not later than three
(3) days prior to Closing, shall provide a separate certified or
official bank check in the amount of the tax shown to be due on
the official Tentative Assessment and Return, which amount shall
be credited against the balance of the Purchase Price payable at
the Closing.
(v) The provisions of this subparagraph (b) shall
survive the delivery of the Deed.
(c) Each party will bear its own attorneys fees.
(d) At Closing, Seller and Purchaser shall deliver or cause
to be delivered such other payments, documents or agreements as
may be required by the terms of this Agreement and to evidence
and effectuate the transaction contemplated herein.
(e) It shall be a condition to Closing that the Deposit and
accrued interest thereon be delivered to Seller by certified or
bank check payable to Seller.
7. Title.
(a) Seller shall convey and Purchaser shall accept
title to the Premises in accordance with the terms of this
Agreement, subject only to the matters expressed herein and the
Permitted Encumbrances. The title that Purchaser is required to
accept as provided herein shall be insured by First American
under an 1992 ALTA Owner's Policy at regular rates. The term
Permitted Encumbrances shall mean (i) all land use, zoning and
similar laws, statutes and regulations now or hereafter
applicable to the Premises ; (ii) the exceptions to title listed
on Schedule B hereto; (iii) the lien of real estate taxes not yet
due and payable ; (iv) any additional exceptions to title arising
as of the Closing, as to which First American agrees to omit
(v) the Seller's sublease and consent agreement; (vi) UCC filings
against Seller's personal property; (vii) the occupancy of a
portion of the Premises pursuant to a Lease between Purchaser and
New Breed Leasing Corporation); (viii) letter agreement dated
October 26, 1992 with Xxxxxxx and Xxxxxxxx Xxxxxx; and (ix) all
violations of record including without limitation health,
building, street and highway violations.
(b) At or prior to the Closing, Seller shall, at its
option,either (1) take such steps by indemnification or otherwise
satisfactory to First American so as to permit First American to
omit the Payment Encumbrances, defined below, or to insure that
collection of such matters shall not be made from the Premises or
(2) satisfy and discharge any fee mortgages of record and all
other liens and judgments of Seller of record that can be
discharged by payment of a sum certain other than the Permitted
Encumbrances ("Payment Encumbrances"). If Seller fails to take
either of such actions with respect to the Payment Encumbrances
by Closing, Purchaser shall accept the Premises subject to such
Payment Encumbrances and receive a credit, as an adjustment to
the Purchase Price, in the amount reasonably determined by First
American, required to remove or discharge any Payment
Encumbrance of record. If the title update delivered at Closing
discloses any defects in title other than the Permitted
Encumbrances and Payment Encumbrances (the "Unpermitted Non-
Payment Encumbrances"), Purchaser may, at its option, terminate
this Agreement by giving Seller five days prior written notice
at the Closing to Seller in which event this Agreement shall be
of no force and effect and the Deposit and interest thereon shall
be returned to Purchaser as its sole and exclusive remedy unless
within the said five day period, Seller has First American omit
any such Unpermitted Non Payment Encumbrance in which event the
Closing will be rescheduled to the earliest date reasonably
possible. In the alternative, at Closing Purchaser may accept
such title subject to the Unpermitted Non-Payment Encumbrances
without reduction or adjustment of the Purchase Price. Payment
of the Purchase Price shall be conclusive evidence that Purchaser
has so accepted title. Seller shall under no circumstances have
any obligation to cure any such Unpermitted Non Payment
Encumbrances or title defect or have any liability with respect
thereto.
8. Representations and Warranties of Seller.
(a) Seller represents that the following is true and
correct as of the date hereof and the same shall be true as of
the Closing:
(i) Seller has the legal right, power, and authority
to enter into and perform its obligations under this Agreement
and the individual signing on behalf of Seller has authority to
bind Seller; and all action necessary or appropriate for Seller's
execution and performance of this Agreement has been taken; and
upon Seller's execution, this Agreement and the other such
documents will constitute legal, valid and binding obligations of
Seller enforceable against Seller in accordance with their
respective terms except as may be limited by bankruptcy,
insolvency or other laws of general application relating to or
affecting the enforcement of creditor's rights.
(ii) Seller is not the subject of any insolvency,
bankruptcy or other similar proceeding.
(iii) The Premises will be delivered at Closing free
of any tenancies and occupants other than Seller pursuant to its
sublease and non disturbance agreement(and the New Breed Lease).
(iv) There are no service contracts relating to the
operation, maintenance or repair of the Premises or the personal
property located thereon other than those which will be
terminated on or prior to Closing.
(v) To Seller's knowledge, there are no existing,
pending or, to its knowledge, threatened condemnation, zoning or
other land use proceedings or road widening proceedings affecting
or pertaining to the Premises. Seller has not received any
notice of any violations of or claim under or pursuant to any
Environmental Law except as set forth on Schedule III. Except as
set forth on Schedule III, Seller (without having made any
independent investigation of its own)is not aware of any
Environmental Activity at the Premises or the existence of any
Hazardous Materials at the Premises.
(vi) Seller is not a "foreign person" as defined in the
Internal Revenue Code Section 1445 and the regulations issued
thereunder.
(vii) Seller has fee simple title to the Premises
subject to the Permitted Encumbrances and the other matters
expressed herein.
(viii) As of the date of the signing of this
Agreement, there is no litigation, proceeding or claim pending,
or to Seller's knowledge, threatened in writing, which (A)
materially adversely affects Seller's title to the Premises, or
(B) materially adversely affects Seller's ability to perform its
obligations under this Agreement.
(ix) Seller will maintain the insurance policies
(currently in effect) with respect to the Premises listed on
Schedule IV:
(x) Seller will maintain the Premises and otherwise
operate the Premises in the same manner as before the making of
this Agreement.
(xi) From and after the date hereof Seller shall not
enter into any mortgage or security agreement affecting the
Premises or any portion thereof or enter into any agreement,
undertaking or instrument affecting title to or the use of the
Premises without Purchaser's prior written approval provided that
Seller shall have the right to enter into or grant such easement
or similar rights as would be considered Permitted Encumbrances
under clause (iv) of that definition.
(xii) Seller has delivered to Purchaser the
Certificates of Occupancy for the Premises.
(b) Purchaser's right to make a bona fide claim against
Seller for the untruthfulness of any matter set forth in this
Paragraph 8 shall survive the Closing but not the termination of
this Agreement for a period of three (3) months only provided
that clauses (i), (v), (vii), (viii), (x), (xi) and (xii) shall
not survive Closing or the termination of this Agreement. In the
event that Purchaser had knowledge at the Closing of the
untruthfulness of any matter set forth in this Xxxxxxxxx 0,
Xxxxxxxxx shall be deemed to have waived such matter and its
right to make any claim against Seller. Under no circumstance
shall Purchaser be entitled to make any claim for special or
consequential damages or recision.
9. Representations and Warranties of Purchaser.
(a) Purchaser represents and warrants to the Seller as
follows:
(i) Purchaser has full power to execute, deliver and
carry out the terms and provisions of this Agreement and has
taken all necessary action to authorize the execution, delivery
and performance of this Agreement. The individual(s) executing
this Agreement on behalf of Purchaser has the authority to bind
Purchaser to the terms and conditions of this Agreement. This
Agreement and all documents required hereby to be executed by
Purchaser, when so executed, shall be legal, valid and binding
obligations of Purchaser enforceable against Purchaser in
accordance with their respective terms except as may be limited
by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditor's rights.
(ii) Purchaser will be accepting the Premises in an "as
is" condition including, without limitation, all of the matters
disclosed on the Engineers Report attached hereto as Schedule D
as well as the matters set forth on Schedule III subject,
however, to Section 5 and Section 16. Other than its right to
cancel as provided in Sections 5 and 16, Purchaser hereby waives
any and all claims whatsoever it might have with respect to the
nature or condition of the Premises. Purchaser understands that
Seller is under no obligation whatsoever, to make any
alterations, repairs, renovations, improvements of any nature or
kind to the Premises. Seller, however, shall have all of its
personal property removed from that portion of the Premises it is
not occupying under its Sublease by the Closing Date and said
portion shall be delivered in a "broom clean" condition.
(iii) Before entering into this Agreement, Purchaser
has made all examinations, inspections and investigations of the
operation, condition, income and expenses of the Premises and all
other matters affecting or relating to this transaction as
Purchaser deemed necessary or desirable. In entering into this
Agreement, Purchaser has not been induced by and has not relied
upon any representations, warranties or statements, whether
express or implied, made by Seller or any agent, employee or
other representative of Seller or by any broker or any other
person representing or purporting to represent Seller, which are
not expressly set forth in this Agreement, whether or not any
such representations, warranties or statements were made in
writing or orally.
(iv) No Litigation. As of the date of the signing of
this Agreement, there is no litigation, proceeding or claim
pending, or to Purchaser's knowledge, threatened in writing,
which materially adversely affects Purchaser's ability to perform
its obligations under this Agreement.
(b) The provisions set forth in this Section 9 shall
survive the Closing but not the termination of this Agreement.
10. Apportionments. (a) The following shall be
apportioned and adjusted between Seller and Purchaser as of
midnight of the day preceding the Closing Date:
(i) real estate and other taxes, assessments and
charges (provided that same shall not include taxes based on the
income or profits of Purchaser or Seller), and other municipal
and state charges, license and permit fees (provided that same
shall not include fees or charges for operating the business of
either party other than those arising out of the operation or
ownership of the Premises), if any, on the basis of the fiscal
period for which assessed or charged;
(ii) water and sewer rents and charges on the basis of
the fiscal period for which assessed or charged;
(iii) water, electric, gas, steam and other utility
charges for services furnished to the Premises;
(iv) fuel, if any, and all taxes thereon, on the basis
of a reading taken as late as possible prior to the Closing
Date, at the price then charged by Seller's supplier, including
any taxes;
(v) such additional adjustments as are normally made
in connection with the sale of buildings in New York State or as
may be provided herein.
(vi) Intentionally omitted.
(vii) all interest accrued on the Deposit shall be
credited against the Purchase Price.
(b) Aggregate apportionments payable at the Closing by
either party hereto must be paid by certified check, wire
transfer or attorney's check.
(c) The obligation to adjust as provided hereunder, shall
survive Closing (but not the termination of this Agreement) to
the extent any amounts are not known or incorrectly computed.
11. Recording Charges.
(a) Purchaser shall pay the recording fees imposed for
recording of the Deed and for recording of any other incidental
documents related to conveyance of title to Purchaser. It being
expressly understood and agreed that Seller shall not be
responsible for any fees, taxes or other charges relating to the
recording of Purchaser's mortgage or other financing documents,
if any.
12. Intentionally omitted.
13. Tax Reduction Proceedings. There are, as of the date
hereof, no presently pending tax reduction proceedings involving
the Premises. If any such proceeding is commenced by Seller
prior to Closing, Purchaser shall continue prosecution of same,
which Purchaser may settle and resolve in its sole and reasonable
discretion. If Purchaser obtains a refund by commencing its
own proceeding, the refund, less the legal fees incurred in
connection therewith, shall be apportioned between Seller and
Purchaser as provided herein. The provisions of this Section 13
shall survive the Closing but not the termination of this
Agreement. Purchaser shall commence a tax reduction proceeding
involving the Premises no later than May 3, 1996 and if the
transaction contemplated herein does not close as provided
herein, Purchaser shall assign all of its right, title and
interest in such action to Seller in a written instrument
satisfactory to Purchaser's counsel.
14. Liquidated Damages. (a) If Purchaser shall fail to
close title in accordance with all of the terms and provisions of
this Agreement all monies theretofore paid or deposited by
Purchaser under this Agreement (and interest accrued thereon)
shall be retained by Seller as liquidated damages (which the
parties hereby acknowledge are fair and equitable and not a
penalty) as its sole and exclusive remedy and this Agreement
shall terminate and be of no force and effect, and the parties
hereto shall not thenceforth have any claim of any nature against
the other party hereto.
(b) In the event Seller (assuming Purchaser has
unconditionally waived all of its rights hereunder to terminate)
does not convey title at Closing as a result of a wrongful,
willful failure by Seller, Purchaser shall be entitled to
undertake any legal or equitable remedies available to it
including, without limitation, a suit for specific performance.
15. Brokerage. Each party represents to the other that it
has not dealt with any broker, agent, or finder in connection
with the transactions contemplated by this Agreement, other than
Xxxxxx and Xxxxxxx Incorporated (the "Broker"). Each party shall
indemnify and defend the other party from any loss incurred by
the other party, including reasonable legal fees and
disbursements, arising out of a breach of the foregoing
representations made by such party under this Section 15. Seller
shall be responsible for any fees due to Broker in connection
with the transaction contemplated by this Agreement provided that
Purchaser shall be responsible to pay Broker or any other entity
or individual claiming any compensation with respect to Seller's
Sublease and/or the New Breed Lease. Notwithstanding anything to
the contrary in this Agreement, the representations and
indemnifications of the parties under this paragraph 15 shall
survive either the Closing or the termination of this Agreement.
16. Risk of Loss; Eminent Domain.
(a) The parties hereby waive the provisions of Section 5-
1311 of the New York General Obligations Law.
(b) If, prior to Closing, any portion of the Premises
shall be damaged or destroyed by fire or other cause, Seller
shall as soon as practicable, but in no event later than 10 days
after the occurrence of such damage or destruction notify
Purchaser of the estimated cost of restoration of the Premises as
determined by written estimate of an independent, duly licensed
construction contracting firm or architect with at least 5 years
experience selected by Seller from the following list which list
is hereby approved by Purchaser:
1) IVI
2) Herzbeg Xxxxxxx
3) Xxxxxxx Xxxxxx
If the cost of repairing the damage or casualty shall be $300,000
or more , then this Agreement shall terminate and be of no force
and effect and Purchaser (as its sole and exclusive remedy) shall
receive the Deposit with all accrued interest unless Purchaser
elects by written notice given to Seller within 5 business days
of receipt of said estimate to purchase the Premises "as is", In
which event the Closing shall take place on the later of the date
established under Section 6 or ten days after Purchaser's written
election to purchase "as is". If the estimated cost of repair is
less than $300,000, then this Agreement shall continue in full
force and effect and Seller shall give Purchaser a credit against
the Purchase Price in an amount (not to exceed $300,000) equal to
the estimated cost of repair (as set forth in the estimate sent
to Purchaser) and Seller shall retain all rights to any insurance
proceeds. In all events Seller shall have no obligation to repair
or restore the Premises. If the cost of repair exceeds $300,000
and Purchaser shall not elect to terminate as set forth above,
then the Purchase Price shall be reduced by $300,000 and Seller
shall retain a priority right to the insurance proceeds up to
$300,000 and , the balance of the proceeds shall be assigned to
Purchaser (if title is transferred to Purchaser).
(c) If, prior to the Closing, any condemnation or eminent
domain proceedings are initiated which could result in the taking
of any part of the Premises, Seller shall promptly notify
Purchaser of such initiation and the following shall apply.
(i) If the taking is or would be material and
permanent as defined below, this Agreement shall automatically
terminate and be of no further force and effect and the Purchaser
shall receive the Deposit (as its sole and exclusive remedy) with
all accrued interest.
(ii) If the taking is either not material or non-
permanent, then this Agreement shall continue in full force and
effect without any adjustment in the Purchase Price because of
such taking or condemnation, in which event Seller shall assign
to Purchaser (without recourse to Seller) all of Seller's rights,
title and interest in and to any award made in connection with
such condemnation or eminent domain proceedings.
(d) If any taking shall be for a period of more than
one year it shall be deemed "permanent". If more than 10% of the
non-improved portion of the Premises is subject to such permanent
taking it shall be deemed to be "material".
(e) Notwithstanding the determination that the
condemnation or taking is material or permanent as defined
herein, Purchaser may, by written notice to Seller given within 5
business days of Seller's notice concerning the condemnation or
taking, agree to purchase the Premises in which event this
Agreement will continue in full force and effect and at the
Closing, Seller shall assign all of its right, title and interest
in any awards to Purchaser and the Purchase Price shall not be
adjusted because of such condemnation or taking.
17. Limitation on Survival of Representations. Except as
specifically provided for in this Agreement, no covenant,
representation or warranty of either Seller or Purchaser shall
survive the Closing or termination of this Agreement and the
delivery of the Deed by Seller; and the acceptance thereof by
Purchaser, shall be deemed the full performance and discharge of
every obligation on the part of Seller except those which are
expressly stated in this Agreement to survive the Closing.
18. Notices, Etc. All notices, consents, approvals and
other communications under this Agreement shall be in writing and
shall be deemed given the third business day after mailing by one
party addressed as follows:
If to Seller:
Noodle Kidoodle, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxx, President
with a copy to:
Xxxxxxx Xxxxxx, Esq.
Ferrara, Turitz, Xxxxxxx & Xxxxxxxx, P.C.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
If to Purchaser:
At the address set forth above.
with a copy to:
Lazer, Aptheker, Xxxxxxx, Xxxxxxx & Xxxxx, L.L.P.
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Any writing which may be mailed pursuant to the foregoing may
also be delivered by hand or transmitted by telegraph, telex or
telecopier or by overnight courier service of recognized national
standing with guaranteed next-day delivery, and shall be
effective when received by the addressee. Any notices which
either party may be required to give or may desire to give; any
consents by either party under this Agreement; and any
adjournments of the Closing Date may be given or consented to by
the attorney for such party with the same force and effect as if
given or consented to by such party. Either party may, from time
to time, specify as its address for purposes of this Agreement
any other address upon the giving of 5 days' notice thereof to
the other party.
19. Integration. All understandings and agreements
between the parties with respect to the subject matter of this
Agreement are merged in this Agreement, which alone fully
expresses their agreement with respect to such subject matter.
20. Consents, Approvals, Etc. Whenever the consent or
approval of a party is required under any provision of this
Agreement or a matter is subject to the satisfaction of a party,
such party shall not unreasonably delay or withhold such consent
or approval and shall not be unreasonable in deciding whether
such matter is satisfactory.
21. No Assignment. Purchaser may assign its rights
hereunder provided such assignment shall in no way act to relieve
Purchaser of any of its obligations hereunder. To be effective
any such assignment (i) must be in writing, (ii) a copy thereof
must be delivered to Seller within three days of its execution or
at Closing whichever occurs first, (iii) the assignee must
unconditionally assume all of Purchaser's obligations hereunder,
and (iv) Purchaser must confirm its continuing liability
hereunder.
22. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New
York.
23. Amendments and Waivers. Neither this Agreement nor
any of the terms hereof may be terminated, amended or waived
orally, but only by an instrument in writing signed by the party
against which enforcement of the termination, amendment or waiver
is sought, and then only to the extent set forth in such
instrument. No waiver of any breach of this Agreement or of any
provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof or of this Agreement or of
any provision herein contained. No extension of time for
performance of any obligations to be performed hereunder shall be
deemed an extension of the time for performance of any other
obligations hereunder.
24. Interpretation. The headings of the various
subdivisions of this Agreement are for convenience of reference
only and shall not define or limit any of the terms or provisions
hereof. All pronouns shall be deemed to refer to the masculine,
feminine, neuter, singular or plural as the identity of the
person or persons may require.
25. Recording. Purchaser shall not record, or cause to
be recorded, this Agreement or any memorandum thereof.
26. No Third Party Beneficiaries. Seller and Purchaser do
not intend to confer any benefit by or under this Agreement upon
any person or entity other than Seller and its successors and
assigns and Purchaser and its permitted successors and assigns.
27. Purchaser's Lien. The Deposit and the reasonable
actual costs incurred by Purchaser in connection with this
Agreement for title examination and survey expenses, shall be
liens against the Premises; provided, however, in the event
Purchaser is in default under this Agreement, all such liens
shall be automatically null and void.
28. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement
to produce or account for more than one such counterpart.
29. Certain Definitions. To the extent utilized herein,
"Environmental Activity" means any use, storage, release,
threatened release, emission, disposal, escape, seepage, leakage,
spillage, pumping, pouring, emptying, injection, dumping,
presence, migration, transferring, manufacturing, discharge,
generation, processing, abatement, removal or disposition of any
Hazardous Materials from, under, into or on the Premises or the
groundwater beneath the Premises or any handling, transportation
or treatment of Hazardous Materials arranged by or on behalf of
Seller and relating to the Premises.
To the extent utilized herein, "Environmental Laws" means
any current federal, state or local statute, code, ordinance,
rule, regulation, permit, consent, approval, license, judgment,
order, writ, decree, injunction, guidance or policy statement or
other authorization, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act, as amended (42 U.S.C. Section 9601 et seq.), the Resource
Conservation and Recovery Act as amended (42 U.S.C. Section 6901 et
seq.), the Hazardous Materials Transportation Act, as amended,
(49 U.S.C. Section 1801 et seq.), the Clean Air Act, as amended (33
U.S.C. Section 1251 et seq.), the Federal Water Pollution Control Act,
as amended (33 U.S.C.Section 1251, et seq.), the New York State
Environmental Conservation Law, as amended, the Sanitary Code of
Suffolk, and any applicable requirements to register underground
storage tanks, relating to emissions, discharges, releases or
threatened releases of Hazardous Materials into ambient air,
surface water, groundwater, publicly owned treatment works,
septic systems or land, or otherwise relating to the pollution or
protection of health or the environment.
To the extent utilized herein, "Hazardous Materials" means
(a) any substance, material or waste defined, used or listed as a
"hazardous waste", "extremely hazardous waste", "restricted
hazardous waste", "hazardous substance", "hazardous materials",
"toxic substance" or other similar terms as defined or used in
any Environmental Laws, and (b) any petroleum products, asbestos,
polychlorinated biphenyls, flammable explosives or radioactive
materials,
30. Exchange Language. Like-Kind Exchange. Seller
acknowledges that Purchaser has advised Seller that Purchaser may
exchange the Premises for real property of like kind under such
terms and conditions that qualify as an exchange within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended. Notwithstanding any other provisions of this Agreement
to the contrary, the following conditions are agreed and
understood by the parties hereto:
Purchaser shall have the right, to assign this Agreement to
a trustee under an exchange trust agreement to facilitate a like
kind exchange under Internal Revenue Code Section 1031 provided
that the last sentence of paragraph 21 shall be complied with.
Seller shall not be required to incur any cost or liability
or spend or advance any sums of money in excess of that which
Seller otherwise would have been required to incur or expend in
connection with the sale of the Premises; all such excess sums of
money and all such costs and liabilities shall be the
responsibility of an provided by Purchaser, and shall be paid or
undertaken, as the case may require, by Purchaser in accordance
with the provisions of the exchange trust agreement.
WITNESS: SELLER:
/s/Xxxxxxx Xxxxxx By:/s/Xxxxxxx Xxxx, President
Xxxxxxx Xxxx
WITNESS: PURCHASER:
_________________________ By:/s/Xxxxxxx Xxxxxxx
The undersigned hereby agrees to act as Escrowee pursuant to
the terms of the Purchase and Sale Agreement set forth above and
pursuant to the Rider annexed hereto acknowledges receipt of the
Deposit.
FIRST AMERICAN TITLE INSURANCE, INC.
By:/s/Xxxxxx X. Knee, Sr. V.P.
ESCROWEE
G:\MAIN\CORPS\CO-3376\6thPSA.401
RIDER TO CONTRACT OF SALE
ADDITOINAL ESCROW PROVISIONS
1. Escrowee acknowledges its receipt of the Deposit by
check and agrees to hold it pursuant to the provisions of this
Agreement for the benefit of each of Purchaser and Seller in
accordance with the Contract. The Deposit shall be invested in a
money-market account at either Chemical Bank or EAB in a Nassau
County Branch, New York or other interest bearing account with a
federally insured banking or savings institution having offices
in New York City as selected by Escrowee and agreed to by Seller
and Purchaser. It is expressly acknowledged by Seller and
Purchaser that Escrowee shall be permitted and obligated to
deposit the funds with a federally insured institution, but each
recognizes and agrees that the limits of such insurance may be
less than the total funds on deposit and that Escrowee shall not
be required to spread the funds among different institutions in
order to fall within the federal insurance coverage limitations.
Escrowee shall have no liability for the loss of principal or
interest on the deposited funds by any depository or the failure
of a depository to return the principal of, or pay interest on,
the deposited funds when requested, or for any other default,
action or in action on the part of such depository. Seller and
Purchaser understand that it may take some time to deposit the
funds and some time to withdraw the funds and that the funds will
earn no interest during such times. The term "Deposit" as used
herein shall, unless otherwise provided, be deemed to include any
and all interest earned on the Deposit pursuant to this
Agreement.
2. If a dispute shall arise as to the disposition of the
Deposit or if Escrowee shall be uncertain as to its duties or
rights hereunder, Escrowee is authorized to (x) refrain from
taking any action other than to keep safely the Deposit, except
to comply with the judgment of a court of competent jurisdiction
as to the disposition thereof, or (y) deposit or turn over the
Deposit with or to any court of competent jurisdiction and
thereupon be relieved from all responsibilities with respect
thereto.
LIST OF SCHEDULES
Schedule A................................. Legal Description
Schedule B............................ Permitted Encumbrances
Schedule C............................... List of Contractors
Schedule D................................. Engineer's Report
Schedule I................................ County Certificate
Schedule I-A..................................... Dec. Letter
Schedule II......................................... Form S-9
Schedule III........................... Environmental Matters
Schedule IV........................................ Insurance
SCHEDULE "A" - Legal Discription
FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK
Title No. 151-S-1422
ALL that certain plot, piece of parcel of land, situate,
lying and being at Farmingdale, Town of Babylon, County of
Suffolk and State of New York, more particularly bounded and
described as follows:
BEGINNING at a point on the Northerly side of Price Parkway,
which point of beginning is 1547.61 feet, West of the corner
formed by the intersection of the Westerly side of Broad Hollow
Road and the Northerly side of Price Parkway;
RUNNING THENCE along the Northerly side of Price Parkway,
South 72 degrees 58 minutes 48 seconds West, a distance of 736.62
feet;
THENCE North 40 degrees 22 minutes 06 seconds West, 266.91
feet;
THENCE North 23 degrees 09 minutes 16 seconds East, a
distance of 419.99 feet, to a point;
THENCE along the arc of a curve, bearing to the right, the
radius of which is 310 feet and the arc angle of which is 56
degrees 45 minutes 26 seconds for a length of 307.09 feet, to a
point;
THENCE North 21 degrees 44 minutes 52 seconds East a
distance of 43.64 feet;
THENCE North 68 degrees 15 minutes 08 seconds West, a
distance of 320 feet;
THENCE South 21 degrees 44 minutes 12 seconds West, a
distance of 464.44 feet;
THENCE North 68 degrees 15 minutes 48 seconds West, 58 feet;
THENCE North 21 degrees 44 minutes 12 seconds East, 522.44
feet;
THENCE South 68 degrees 15 minutes 08 seconds East, a
distance of 677.55 feet;
THENCE South 17 degrees 01 minutes 12 seconds East, a
distance of 565.39 feet, to the point or place of BEGINNING.
SCHEDULE "B" - Permitted Encumbrances
FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK
Title No. 151-S-1422
Hereinafter set forth are additional matters which will
appear in our policy as exceptions from coverage unless disposed
of to our satisfaction prior to the closing of delivery of the
policy.
DISPOSITION:
1. Any state of facts which an accurate survey of current date
would disclose.
2. The exact location, courses, distances and dimensions of the
premises described in Schedule A are not insured without a
survey thereof acceptable to this Company.
3. Covenants and/or restrictions set forth in a(n) Declaration by
and between East coast Lumber Terminal, Inc., dated October 4,
1954, recorded October 21, 1954, in Liber 3777 page 424. (See
Within).
4. Covenants and/or restrictions set forth in a(n) Declaration by
and between East Coast Lumber Terminal, Inc., dated September
17, 1954, recorded October 21, 1954, in Liber 3777 page 426
(See Within).
5. Easement contained in deed by and between East Cost Lumber
Terminal, Inc., and S.K. Plainview Corp., dated January 26,
1961, in Liber 4944 page 359 (See Within) not located.
6. Rights and Easements contained in instrument dated June 15,
1962, by and between The Long Island Railroad Company and East
Coast Lumber Terminal, Inc., recorded July 23, 1962, in Liber
5201 page 179 (See Within), as amended by Indenture by and
between the Long Island Railroad Company and Xxxxxx X. Xxxxx
Industrial Park, Inc., dated December 10, 1965, recorded
January 28, 1966, in Liber 5903 page 83. (See Within).
7. Terms, Covenants, Conditions and Easements in Agreement by and
between East Coast Lumber Terminal, Inc., and Xxx X. Xxxxx,
dated June 30, 1962, recorded September 23, 1962, in Liber
5236 page 68 (See Within) Easements not located.
8. Covenants and/or restrictions set forth in a(n) Declaration by
and between Xxxxxx X. Xxxxx Industrial Park, Inc., recorded
April 10, 1963, in Liber 5331 page 479. (See Within).
9. Drainage Easement contained in instrument dated February 26,
1976, by and between Xxxxxxxx Bros., Inc., and town of
Babylon, recorded May 28, 1976, in Liber 8040 page 597 (See
Within) (Affects Easterly 39.5 feet and Northerly portion of
premises (not specifically located).
10. Covenants and/or restrictions set forth in a(n) deed by and
between Xxxxxx Associates and 00 Xxxxxx Xxxxxx Realty Corp.,
dated January 31, 1969, and recorded February 25, 1969 in
Liber 6510 at page 282. (See Within).
SCHEDULE "C" - List of Contractors
SCHEDULE C TO CONTRACT BETWEEN
NOODLE KIDOODLE, INC.
AND
RECKSON OPERATION PARTNERSHIP
EWT Contracting
00-00 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Asbestos Containment Services
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
SCHEDULE "D" - Engineer's Report
REMEDIAL COST ESTIMATES
DEFERRED MAINTENANCE & EXISTING DEFICIENCIES
COST ESTIMATE
No. DESCRIPTION IMMEDIATE SHORT-TERM
(0-1 Year)
1.1 Apply Coal Tar Sealant (3-Coats) to Parking Areas &
Drives - Asphalt pavement is severely oxidized and
encumbered by cracks and oil staining in the parking
spaces. $12,200
Clean all surface cracks 1/4" or larger and fill using
a hot rubberized crack filler ASTM 3405. Clean all
surfaces and prime all oil spots. Squeegee apply Poly-
Tar Coal Tar Emulsion or equal sealer. First coat
(primer) to be without sand, and the second and third
coasts are to include 6 lbs. Sand per gallon of emul-
sion. Upon completion, re-stripe parking lot and all
directional stenciling. $ 500
1.2 Replace Deteriorated Sections of Asphalt Pavement -
Paved parking areas are encumbered by cracks, soft
areas having extensive crazing and alligatoring of
the surface, and deteriorated sections. Previous
patch type repairs were noted. $ 1,500
Saw cut and excavate to a depth of 6" asphalt paving
from deteriorated sections. Install 6" of suitable
base material, either Item IV or crushed limerock, and
compact. Apply liquid tack coat for bonding. Install
1 1/2" of Type III asphalt, and machine roll for com-
paction and smooth finish. Cost will vary depending
upon the area replaced.
1.3 Replace Concrete Walkway Sections - Significant
sections of walkways are severely cracked, settled and
heaved. Such condition is noted at the main entrance
on the south side of the building. Remove deteriorated
sections, prepare bed, and install new 4" thick side-
walks complete with W.W.F. and expansion joints.
Sections that exhibit cracks but that do not warrant
replacement should have all cracks pointed with a non-
shrinking grout. $500
1.4 Repair Cracked and Spalled Steps, and Replace Hand-
rails - The concrete steps located at service areas
are cracked, deteriorated, and spalled. Complete
replacement does not appear to be necessary at this
time. However, patching of cracked and deteriorated
surfaces is recommended. Replace damaged steel pipe
railings with new painted units. $ 3,500
2.0 Substructure & Superstructure
2.1 Superstructure: Replace Missing & Damaged Fire-
proofing Applied to Structural Steel - Fireproof
covering to the steel beams located at the mezza-
nine level area is missing or damaged. Similarly,
column fireproofing is also lacking at some areas.
All beam and girder fireproofing should be repaired,
damaged column fireproofing removed, the column
examined for soundness, and its fireproofing restored. $ 1,000
3.0 Exterior - Stone, Concrete & Masonry Systems
3.1 Repair Brick & CMU Walls - Masonry facade walls are
cracked, have open mortar joints, are displaced,
spalled, and damaged by service vehicles. Seal and
grout all open joints, cracks and wall penetrations,
and replace damaged masonry walls. $15,000
3.2 Fenestration & Doors: Paint Service Doors and
Miscellaneous Metals - Paint on hollow metal doors,
railings and miscellaneous metals is faded and
weathered. Wire brush and prepare surfaces,
prime and apply two (2) coats of Xxxxxxx Industrial
Enamel #4550, or equal. $ 2,000
4.0 Roof
4.1 Apply aluminum Reflective Coating to Smooth-Surface
Built-up Roof - Existing reflective coating is
beginning to fade. A re-application of an aluminum
coating is recommended to reflect the sun's heat to
prevent further drying-up of the remaining flood
coat, to reduce the building's cooling load, and to
extend the expected useful life of the BUR system. $75,200
Make necessary remedial flashing repairs and broom
sweep roof of all debris. Further clean roof surface
with Castrol Super Clean, or equal, diluted with 10 parts
water. Then apply Karnak Aluminum Coating or equal
in full conformance with manufacturer's instructions.
Budget cost over three (3) years with 1/3 of the roof
to be coated each year.
5.0 Interior
5.1 Repair CMU Warehouse Wall - Loose and displaced CMU at
an interior warehouse wall at the northwest corner appear
to be in eminent danger of falling. Remove loose
masonry and repair the hazardous condition. $500
5.2 Replace Stained and Damaged Ceiling Tiles - Numerous
acoustic ceiling tiles are damaged, missing or stained
from roof leaks. Budget replace with new ceiling tiles. $ 500
7.0 Heating, Ventilation & Air Conditioning
7.1 Repair Leaks at Boilers - There are indications of water
circulator pump leaks and oil leaks. Replace or repair
pumps as necessary. $ 500
7.2 Refurbish Space Heaters - Hydronic space heaters in the
require refurbishing with new fans, motors, pumps, etc. $12,000
7.3 Replace HVAC System - Five (5) original equipment air
handling units have realized its EUL. Numerous repairs
have not rectified the problems. Replace with package
RTU's to be phased-in over three (3) years. $ 7,700
8.0 Electric
8.1 Relamp and Provide new Ballasts - The 400 xxxxx HPS lights
require relamping and new ballasts. The original units
have realized their EUL. $ 5,000
8.1 Perform Electrical Repairs and Maintenance - Rusted EMT
at the roof area, loose wiring, missing cover plates,
etc. were noted throughout the building. Perform
replacement and repairs to comply with code requirements. $ 5,000
Total: $ 1,000 $141,600
Rounded Total: $ 1,000 $142,000
SCHEDULE "I" - County Certificate
COUNTY OF SUFFOLK
XXXXXX X. XXXXXXX
SUFFOLK COUNTY EXECUTVE
DEPARTMENT OF HEALTH SERVICES XXXX X. HIROCAD,
M.D., M.P.H.
COMMISSIONER
Date: October 5, 1996
To: G & M Dege From: Suffolk County Department
000 Xxxxxxx Xxxx of Health Services
X. Xxxxxxxxx, XX 00000 Bureau of Hazardous
Materials
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Re: Decommissioning of Underground Storage Tanks
SCDHG ID # 2-1672
Facility Name:
Facility Address:
Gentlemen/Madem:
This is to confirm that on a representative of this
department witnessed the proper [ ] removal / [ ] abandonment in
place of the following above/underground tank(s):
___________________________ _______________________________
___________________________ _______________________________
___________________________ _______________________________
___________________________ _______________________________
___________________________ _______________________________
[X] This required inspection of the tank removal(s) reveals no
visible ground contamination within the excavation.
[ ] This required inspection of the tank removal(s) revealed
ground contamination.
[ ] This required inspection of the tank abandonment(s) con-
firmed that this tank was properly cleaned and filled with
sand/concrete. Samples taken from the required groundwater
monitoring xxxxx will be analyzed by the NYSDEO and they
will notify you of any necessary remedial action.
Very truly yours,
/s/Xxxx X. Gladyez
Bureau of Hazardous Materials
XXXX X. GLADYEZ
SR. PUBLIC HEALTH SANITARIAN
SCHEDULE "I-A" - Dec. Letter
(000) 000-0000
__________________________
__________________________
__________________________
RE: Spill # ____________________________________
Dear _________:
This Department has reviewed the referenced spill file.
Based upon this review, we have no further requirements for this
spill at this time.
Should additional environmental problems be discovered at
this referenced site, this office will require further action at
that time. This spill file has been removed from our active
spill list.
Sincerely,
______________________
______________________
SCHEDULE "II" - Form S-9
FORM S-9
S.C. DEPT. OF PUBLIC WORKS, DIV. OF SANITATION
S.C. DEPT. OF HEALTH
Purported owner Building Permit No. _____________
Name _________________________ Map Name ________________________
Address ______________________ Map No. ________________________
______________________ Hamlet of _______________________
Telephone No. ________________ Township of _____________________
Lot No. _________________________
TO WHOM IT MAY CONCERN:;
The sanitary sewers and appurtenances, sewage disposal facilities
and water supply for the above mentioned structure have been
inspected by these departments and found to be satisfactory.
Construction ____________________
Administration __________________
Sanitary Sewers and Appurtenances
Date ____________________________________________________________
Dept. of Public Works, Div. Of Sanitation
Sewage Disposal Facilities
Date ____________________________________________________________
Department of Health
Water Supply
Date ____________________________________________________________
Department of Health
PLEASE NOTE -Where required by contract, escrow deposits must be
made to the Department of Public Works, Division of
Sanitation, before Certificate of Occupancy can be
issued.
IMPORTANT - Please be advised that a minimum of three (3)
business days are required to process this form.
THIS FORM MUST BE SUBMITTED IN TRIPLICATE.
SCHEDULE "III" - Environmental Matters
Schedule III to Contract between Noodle Kidoodle, Inc.
and Reckson Operating Partnership L.P.
1. Letter from U.S. Department of Labor dated 1/18/96 copy
attached.
2. Response to U.S. Department of Labor dated 1/25/96, copy
attached.
3. Letter from A.N.S. Insulation Corp.
4. Existing unregistered underground oil tank.
5. Possible asbestos in a portion of the warehouse.
U.S. DEPARTMENT OF LABOR Occupational Safety and Health
Administration
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
000-000-0000 Fax: 000-000-0000
1/18/96
Noodle Kidoodle
000 Xxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
RE: Noodle Kidoodle
Complaint No. 76949817
Dear Xxxxxx Xxxxxxxxx:
On 1/17/96, the Occupational Safety and Health Administration
(OSHA) received a notice of (safety and/or health) hazards at
your worksite at:
000 Xxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
We appreciate the opportunity we had to discuss the alleged
hazards with you over the telephone on 1/18/96. A review of the
specific nature of the alleged hazards is as follow:
Office in the rear, employees (approximately 30 - 50) potentially
exposed to asbestos.
We have not determined whether the hazards, as alleged, exist at
your workplace; and we do not intent to conduct an inspection at
this time. However, since allegations of violations and/or
hazards have been made, we request that you immediately
investigate the alleged conditions and make any necessary
corrections or modifications. Please advise me in writing, no
later than 1/25/96 of the results of your investigation. You
must provide supporting documentation of your findings, including
any applicable measurements or monitoring results, and
photographs/video which you believe would be helpful, as well as
a description of any corrective action you have taken or are in
the process of taking, including of the corrected condition.
This letter is not a citation of proposed penalty which,
according to the OSHA Act, may be issued only after an inspection
or investigation of the workplace. It is our goal to assure that
hazards are promptly identified and eliminated. Please take
immediate corrective action where needed. We encourage employee
participation in investigating and responding to any alleged
hazard. If we do not receive a response from you by 1/25/96
indicating that appropriate action has been taken or that no
hazard exists and why, and OSHA inspection will be conducted. An
inspection may include a review of the following: injury and
illness records, hazard communication, personal protective
equipment, emergency action or response, bloodborne pathogens,
confined space entry, lockout and related safety and health
issues.
Please note, however, that OSHA selects for inspection some cases
where we have received letters in which employees have indicated
satisfactory corrective action. This is to ensure that employers
have actually taken the action stated in their letters.
The State of New York offers OSHA consultation services, without
charge, to assist in resolving all occupational safety and health
issues. The variety of services available or the scheduling of
those services may be limited by the consultation project's
requirement to give priority to small businesses in high hazard
industries and by its backlog. However, you may be able to
obtain similar services from your insurance carrier or private
consultant in a more timely fashion. To discuss or request the
services, call or write your New York consultation project at the
following address:
New York State Department of Labor
Division of Occupational Safety and Health
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
000-000-0000
You are requested to post a copy of this letter where it will be
readily accessible for review by all of your employees and return
a copy of the signed Certificate of Posting (Attachment A) to
this office. Also, you are requested to provide a copy of this
letter and your response to it to a representative of any
recognized employee union of safety committee if these are at
your facility. Failure to do this may result in an on-site
inspection. The complainant has been furnished a copy of this
letter and will be advised of your response. Section 11(c) of
the OSHA Act provides projection for employees against
discrimination because of their involvement in protected safety
and health related activity.
If you have any questions concerning this matter, please contact
the Area Office at the address in the letterhead. Your personal
support and interest in the safety and health of your employees
is appreciated.
Sincerely,
/s/Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
Area Director
Enclosure
AJD:
Noodle Kidoodle, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
January 25, 1996
U.S. Department of Labor
Occupational Safety and Health
Administration
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
RE: Noodle Kidoodle
Complaint No. 76949817
Dear Xx. Xxxxx:
As I advised you during our telephone conversation today, Noodle
Kidoodle is in the process of contracting to sell the building at
000 Xxxxx Xxxxxxx, Xxxxxxxxxxx. The potential buyer hired an
environmental company to inspect the building. Since I have not
been able to get a commitment as to when the report will be
available, I have contacted A.N.S. Environmental to do an
inspection for Noodle Kidoodle.
It is my understanding that they will finish their inspection by
January 29, 1996 and provide us with a written report shortly
thereafter. I will furnish you with the findings and any
necessary action plan by February 2, 1996.
Thank you.
Very truly yours,
/s/Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, Xx.
Vice President
CAR:ak
A.N.S.
INSULATION CORP.
Asbestos Abatement Specialist
Commercial . Industrial . Residential
(000) 000-0000 . Fax (000) 000-0000
January 29, 1996
Xxxxxxxx Bros, Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx, Xx.
Re: 000 Xxxxx Xxxxxxx
We have visually inspected the upper office area at 000 Xxxxx
Xxxxxxx and to the best of our ability and knowledge, we cannot
see any sign of asbestos present. There does not seem to be any
potential exposure.
If you have any further questions, please feel free to call.
Sincerely,
/s/Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
ll/PC
SCHEDULE "IV" - Insurance
000 Xxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000
XXXXXXXX BROS., INC.
SCHEDULE OF INSURANCE FOR
000 XXXXX XXXXXXX, XXXXXXXXXXX, XX
Policy Carrier Coverages Policy Period
Property Arkwright Building - $8,051,000 7/1/95-7/1/96
Machinery & Equipment - $3,810,000
Special Form Includes Flood and
Earthquake
Boiler Coverage Included
Deductible $50,000
Comm'l
Gen. Liab. Fireman's Limit - $1,000,000 Occurrence 7/1/95-7/1/96
Fund $2,000,000 Aggregate
$2,000,000 Prod./Compl. Ops.
Umbrella Fidelity & Limit $10,000,000 7/1/95-7/1/96
Casualty of
NY
Excess U.S. Fire Ins. Limit $10,000,000 x/s $10,000,000 7/1/95-7/1/96
Liab. Co.
