Exhibit 10.56
CONTRACT OF SALE-OFFICE, COMMERCIAL AND MULTI-FAMILY RESIDENTIAL PREMISES
BETWEEN
XX XXXX (F/K/A XX XXXXX) ("SELLER")
AND
SYMS CORP. ("PURCHASER")
DATED DECEMBER 21, 0000
XXXXXXXX:
Xxxxxx Address: 000-000 Xxxxxxxxx Xxxx
Xxxx xx Xxxx: Elmsford
County: Westchester
State: New York
Street Address: 00 Xxxx 000 Xxxxx Xxxxxx
Xxxx xx Xxxx: Villa Park
County: DuPage
State: Illinois
CONTRACT OF SALE--OFFICE, COMMERCIAL AND MULTI-FAMILY RESIDENTIAL PREMISES
CONTRACT OF SALE, dated December 21, 2006 between XX XXXX (f/k/a XX
XXXXX) ("Seller"), an individual, having an address at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and SYMS CORP., a New Jersey corporation, having an address
at Xxx Xxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
SECTION 1. SALE OF PREMISES AND ACCEPTABLE TITLE
ss.1.01. Seller shall sell to Purchaser, and Purchaser shall purchase
from Seller, at the price and upon the terms and conditions set forth in this
contract:
(a) (i) the parcel of land more paricularly described in
Schedule A-I attached hereto ("Syms Land"); (ii) all buildings and improvements
situated on the Syms Land; (iii) 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 Syms Land to the center line: thereof and to any unpaid award for
any taking by condemnation or any damage to the Syms Land by reason of a change
of grade of any street or highway; (iv) the appurtenances and all the estate and
rights of Seller in and to the Syms Land and Building; and (v) 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 (the matters set forth
in items (i) through (v), collectively the "Syms Premises"). For purposes of
this contract, "appurtenances" shall include all right, title and interest of
Seller in and to (A) that certain lease, pursuant to which Purchaser currently
leases from Seller the Syms Land and Building, as more fully described on
Schedule E attached hereto (the "Syms Lease"); (B) plans, specifications,
architectural and engineering drawings, prints, sureys, soil and substrata
studies relating to the Syms Land and the Building in Seller's possession; (C)
all operating manuals and books, data and records regarding the Syms Land and
the Building and its component systems in Seller's possession; (D) all licenses,
permits, certificates of occupancy and other approvals issued by any state,
federal or local authority relating to the use, maintenance or operation of the
Syms Land and the Building to the extent that they may be transferred or
assigned; (E) all waranties or guaranties, if any, applicable to the Building,
to the extent such waranties or guaranties are assignable; and (F) all
tradenames, trademarks, servicemarks, logos, copyrights and good will relating
to or used in connection with the operation of the Syms Land and the Building.
The Syms Premises are located at or known as 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx.
(c) (i) the parcel of land more particularly described in
Schedule A-1 attached hereto ("Elmsford Land"); (ii) all buildings and
improvements situated on the Elmsford Land; (iii) 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 Elmsford Land to the center line thereof and to any
unpaid award for any taking by condemnation or any damage to the Elmsford Land
by reason of a change of grade of any street or highway; (iv) the appurtenances
and all the estate and rights of Seller in and to the Elmsford Land and
Building; and (v) 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 (the matters set forth in items (i) through (v), collectively the
"Elmsford Premises"). For purposes of this contract, "appurtenances" shall
include all right, title and interest of Seller in and to (A) that certain
lease, pursuant to which Elsmford-119 Associates, LLC currently leases from
Seller the Elmsford Land and Building, as more fully described on Schedule E
attached hereto (the "Elmsford Lease"); (B) plans, specifications, architectual
and engineering drawings, prints, surveys, soil and substrata studies relating
to the Elmsford Land and the Building in Seller's possession; (C) all operating
manuals and books, data and records regarding the Elmsford Land and the Building
and its component systems in Seller's possession; (D) all licenses, permits,
certificates of occupancy and other approvals issued by any state, federal or
iocal authority relating to the use, maintenance or operation of the Elmsford
Land and the Building to the extent that they may be transferred or assigned;
(E) all waranties or guaranties, if any, applicable to the Building, to the
extent such waranties or guaranties are assignable; and (F) all tradenames,
trademarks, servicemarks, logos, copyrghts and good wil relating to or used in
connection with the operation of the Elmsford Land and the Building. The
Elmsford Premises are located at or known as 000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx.
(c) (i) the parcel of vacant land more paricularly described
in Schedule A-3 attached hereto (the "Addison Land"); (ii) 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 Addison Land to the center line thereof and
to any unpaid award for any taking by condemnation or any damage to the Addison
Land by reason of a change of grade of any street or highway; (iii) the
appurtenances and all the estate and rights of Seller in and to the Addison
Land; and (iv) all right, title and interest of Seller, if any, in and to any
improvements, fixtures, equipment and other personal property attached or
appurtenant to the Addison Land (the matters set forth in items (i) though (iv)
are collectively referred to herein as the "Addison Premises"). For purposes of
this subparagraph (b), "appurtenances" shall include all right, title and
interest of Seller in and to (i) any plans, specifications, architectural and
engineering drawings, prints, surveys, soil and substrata studies relating to
the Addison Premises in Seller's possession; (ii) all operating manuals and
books, data and records regarding the Addison Premises in Seller's possession;
(iii) all licenses, permits, certificates of occupancy and other approvals
issued by any state, federal or local authority relating to the use, maintenance
or operation of the Addison Premises to the extent that they may be transferred
or assigned. The Addison Premises are located at or known as 00 Xxxx 000 Xxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxx.
ss.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 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 willng,
without special premium, to omit as exceptions to coverage or to except with
insurance against collection out of or enforcement against the Premises.
SECTION 2. PURCHASE PRICE, ACCEPTABLE FUNDS, EXISTING MORTGAGES, PURCHASE MONEY
MORTGAGE, ESCROW OF DOWNPAYMENT AND FOREIGN PERSONS
ss.2.01. The total purchase price ("Purchase Price") to be paid by
Purchaser to Seller for the Premises as provided in Schedule C attached hereto
is Eighteen Milion Four Hundred Forty
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Two Thousand Five Hundred and No/100 ($18,442,500.00) and is allocated as
follows: $13,516,000.00 applicable to the Syms Premises, $4,266,000.00
applicable to the Elmsford Premises and $660,500.00 applicable to the Addison
Premises.
ss.2.02. All monies payable under this contract, uness 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.
ss.2.03. If the sum paid under paragraph (a) of Schedule C or any other
sums 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 interest-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 party of such demand. If Escrowee does not receive a wrtten objection from
the other party to the proposed payment within 10 business days after the giving
of such notice, Escrowee is hereby authorized to make such payment. If Escrowee
does receive such written objection within 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
instructions from the parties to this contract or a final judgment 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 (or, with respect to the Addison
Premises, the equivalent thereof). Escrowee shall give wrtten notice of such
deposit to Seller and Purchaser. Upon such deposit Escrowee shall be relieved
and discharged of all further obligations and responsibilties hereunder.
ss.2.04. 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 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
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to actions or omissions taken or suffered by Escrowee in bad faith, in willful
disregard of this contract or involving gross negligence on the part of
Escrowee.
ss.2.05. Escrowee has acknowledged agreement to these provisions by
signing in the place indicated on the signature page of this contract.
ss.2.06. Escrowee may act or refrain from acting in respect of any
matter referred to in this ss.2.06 in full reliance upon and with the advice 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.
ss.2.07. 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
ss.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 ss. 13.02. The right of termination provided for in
this ss.2.07 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
ss.3.01. Except as otherwise provided in this contract, the closing of
title pursuant to this contract ("Closing") shall take place on the scheduled
date and time of closing specified in Schedule D (the actual date of the Closing
being herein referred 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:
ss.4.02. Unless otherwise provided in this contract, Seller is the sole
owner of the Premises.
ss.4.02. If the Premises are encumbered by an Existing Mortgage(s), no
written notice has been received from the Mortgagee(s) asserting that a default
or breach exists thereunder which remains uncured and no such notice shall have
been received and remain uncured on the Closing Date. If copies of documents
constituting the Existing Mortgage(s) and note(s) secured thereby have been
exhibited to and initialed by Purchaser or its representative, such copies are
true copies of the originals and the Existing Mortgage(s) and note(s) secured
thereby have not been modified or amended except as shown in such documents.
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ss.4.03. The information concerning the Elmsford Lease is accurate as
of the date set forth therein or, if no date is set fort therein, as of the date
hereof, and except for the Syms Lease, the Elmsford Lease, and the Lease
Agreement, dated September 24, 1998, by Elmsford-119 Associates, LLC, as
landlord, and Bed Bath & Beyond, Inc., as tenant ("BBB Lease"), 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) the Elmsford Lease is in full force and effect and it has
not been modified, amended or extended;
(b) no renewal or extension option or options for additional
space have been granted to the tenant under the Elmsford Lease (the "Ground
Tenant");
(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 in the Elmsford Lease are being
collected on a current basis and there are no arrearages in excess of one month;
(e) the Ground Tenant is not entitled to rental concessions or
abatements for any period subsequent to the scheduled date of closing;
(f) Seller has not sent written notice to the Ground Tenant
claiming that such Ground Tenant is in detault, which default remains uncured;
(g) no action or proceeding instituted against Seller by the
Ground Tenant is presently pending in any court;
(h) there are no securty deposits other than those set forth
in the Rent Schedule;
(i) a true and complete copy of the Elmsford Lease has been
delivered to Purchaser or its counsel and initialed by representatives of
Purchaser and Seller;
(j) Seller has performed all of the landlord's obligations
under the Elmsford Lease and no notice of any default of the landlord under the
Elmsford Lease has been given or to the knowledge of Seller is pending;
(k) to the best of Seller's knowledge, no action or
proceeding, voluntary or involuntary, is pending against the Ground Tenant under
any bankruptcy or insolvency act; and
(1) 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 waranties shall be
deemed modified to the extent necessary to eliminate
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such inconsistency and to conform such representations and warranties to the
provisions of the Leases.
ss.4.04. Seller is not a "foreign person" as defined in the Code
Witholding Section.
ss.4.05. The execution and delivery of this contract and the
performance of its obligations hereunder by Seller will not conflct with any
provision of any law or regulation to which Seller is subject or any agreement
or instrment 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
governental agency or body required for the execution, delivery or performance
by Seller of this contract.
ss.4.06. With respect to the Addison Premises only, Seller represents
and warrants to Purchaser as follows:
(a) There are no employees at the Addison Premises.
(b) There are no service, maintenance, supply and/or
management contracts affecting the Addison Premises.
(c) Seller has no actual knowledge of any assessment payable
in annual installments, or any part thereof, which has become a lien on the
Addison Premises.
(d) Seller has no actual knowledge of any pending proceedings
or appeals to correct or reduce the assessed valuation of the Addison Premises.
ss.4.07. For purposes of this Section, the phrase "to Seller's
knowledge" shall mean the actual knowledge of Seller without any special
investigation.
ss.4.08. The representations and waranties made by Seller in this
contract shall be deemed restated and shall be true and accurate on the Closing
Date.
SECTION 5. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser acknowledges that:
ss.5.01. (a) With respect to the Syms Premises, Purchaser has been in
occupancy of the Syms Premises under the Syms Lease since the commencement of
the Syms Lease on December 1, 1978, is fully familiar with the physical and
financial condition and the state of repair of the Syms Premises, and 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.
(b) Purchaser has inspected both of the Elmsford Premises and
Addison Premises, is fully familiar with the physical condition and state of
repair thereof, and, subject to
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the provisions of ss.9.04, shall accept the Elmsford Premises and Addison
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.
ss.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, 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
contract, whether or not any such representations, warranties or statements were
made in writing or orally.
Purchaser represents and warrants to Seller that:
ss.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.
ss.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 creditors' rights generally and by general principles of equity
(regardless of whether such enforceabilty is considered in a proceeding in
equity or at law).
ss.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 pary 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 of any court or governental agency or body required for the execution,
delivery or performance by Purchaser of this contract.
SECTION 6. SELLER'S OBLIGATIONS AS TO LEASES
ss.6.01. Between the date of this contract and the Closing, Seller
shall not permit occupancy of, or enter into any new lease for, space at the
Addison Property and Seller shall not do anything which could result in an event
of default under or cause the termination of the Elmsford Lease.
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SECTION 7: RESPONSIBILITY FOR VIOLATIONS
ss.7.01. Seller shall have no responsibility for, and Purchaser shall
accept the Premises subject to, 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 jursdiction as to conditions affecting the Premises.
SECTION 8. DESTRUCTION, DAMAGE OR CONDEMNATION
ss.8.01. In the event any damage or destruction to all or any portion
of the Premises by fire or other casualty, this Agreement shall remain in full
force and effect, and Buyer's obligation to pay the full Purchase Price (without
reduction or abatement) and close title to the Property on the Closing Date
shall not be affected thereby.
SECTION 9. COVENANTS OF SELLER
Seller covenants that between the date of this contract and the
Closing:
ss.9.01. Seller shall not 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 days' notice.
ss.9.02. Seller shall maintain in full force and effect until the
Closing the insurance policies covering the Premises as of the date hereof.
ss.9.03. Subject to the rights of the subtenant under the Elmsford
Lease, 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:
ss.10.01. (a) With respect to the Syms Premises, 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;
(b) With respect to the Elmsford Premises, 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;
(c) With respect to the Addison Premises, a statutory form of
Warranty Deed, properly executed in proper form for recording so as to convey
the title required by this contract;
(d) a Xxxx of Sale;
(e) an Assignment and Assumption of Leases and Contracts;
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(f) an Assignment and Assumption of Ground Leases;
(g) with respect to each of the Elmsford Premises and the Syms
Premises, a New York State Combined Real Estate Transfer Tax Return, Credit Line
Mortgage Certificate ("TP-584") prepared, executed and acknowledged by Seller in
proper form for submission (together with a certified or bank check for the
amount of such tax);
(h) with respect to each of the Elmsford Premises and the Syms
Premises, a New York State Real Property Transfer Report and any other document
required by law to duly transfer and convey the Elmsford Premises and the Syms
Premises;
(i) with respect to the Addison Premises, an Illinois Real
Estate Transfer Declaration and any other documents required by law to duly
transfer and convey the Addison Premises;
(j) Seller's certificate stating Seller's federal taxpayer
identification number and certifying that Seller is not a foreign person,
corporation, partnership, trust or estate as defined in the Internal Revenue
Code and Regulations thereunder, pursuant to the Foreign Investment in Real
Property Tax Act of 1980; and
(k) Such other affidavits and documents as may be reasonably
required by the Purchaser's title company or to otherwise effectuate any
provision of this Agreement.
ss.10.02. With respect to the Addison Premises, 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.
ss.10.03. 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.
ss.10.04. Checks to the order of the appropriate officers in payment of
all applicable real property transfer taxes and/or document stamps and copies of
any required tax returns therefor executed by Seller, which checks shall be
certified or official bank 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 peijury.
Seller understands that such certification wil be retained by Purchaser and will
be made available to the Internal Revenue Service on request.
ss.10.05. With respect to the Addison Premises, vacant possession of
the Premises in the condition required by this contract (it being understood
that Purchaser is currently in possession of the Syms Premises pursuant to the
Syms Lease); and with respect to the Elmsford Premises, the Elmsford Premises in
"as is" condition (it being understood that Bed, Bath & Beyond, Inc. is
currently in possession of the Elmsford Premises pursuant to the BBB Lease).
ss.10.06. Any other documents required by this contract to be delivered
by Seller.
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SECTION 11. PURCHASER'S CLOSING OBLIGATIONS
At the Closing, Purchaser shall:
ss.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.
ss.11.02. Cause the deeds 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.
ss.11.03. Deliver any other documents required by this contract to be
delivered by Purchaser.
SECTION 12. APPORTIONMENTS
ss.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) any fixed rents, percentage rents, additional rents and
any others sums due and/or payable under the Syms Lease and the Elmsford Lease;
and
(b) real estate taxes, water charges and sewer rents actually
paid by Seller on account of the Syms Lease and/or Elmsford Lease, if any, on
the basis of the fiscal period for which assessed, except that if there is a
water meter on the Premises, apportionment at the Closing shall be based on the
last available reading, subject to adjustment after the Closing when the next
reading is available.
ss.12.02. With respect to the Addison Premises only: if the Closing
shall occur before a new tax rate is fixed, the apportionment of taxes at the
Closing shall be upon the basis of the old tax rate for the preceding period
applied to latest assessed valuation. Promptly after the new rate is fixed, the
apportionment of taxes shall be recomputed. An discrepancy resulting from such
recomputation and any errors or omissions in computing apportionments at Closing
shall be promptly corrected, which obligations shall survive the Closing.
ss.12.03. If any tenants are required to pay percentage rent,
escalation charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller Seller's proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and expenses
of collection thereof, if and when the tenant paying the same has made all
payments of rent and Additional Rent then due to Purchaser pursuant to the
tenant's Lease, which obligation shall survive the Closing. If any tenant is or
becomes entitled to a refund of overpayments of Additional Rent which are
attributable in whole or in part to any period prior to the Closing, Seller
shall pay to Purchaser an amount equal to the amount of such refund attributable
to any such period within 10 days after notice from Purchaser, which obligation
shall survive the Closing.
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SECTION 13. OBJECTIONS TO TITLE, FAILURE OF SELLER OR PURCHASER TO PERFORM AND
VENDEE'S LIEN
ss.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 adjournent or adjournents 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 scheduled 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.
ss.13.02. If Seller shall be unable to convey title to the Premises at
the Closing in accordance with the provisions of ths contract or if Purchaser
shall have any other grounds under this contract for refusing to consumate the
purchase provided for herein, Purchaser, nevertheless, may elect to accept such
title as Seller may be able to convey without any credit against the Purchase
Price or 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 therefor 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 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, of which Seller has actual knowledge.
ss.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 fiing 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 offcicial bills
for such taxes, assessments, water charges, sewer rents, interest and penalties
and instruments in recordable form suffcient 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 ss.2.02. If Purchaser's title insurance company is willing to
insure both Purchaser 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, 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.
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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.
ss.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.
ss.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.
SECTION 14. BROKER
ss.14.01. Seller and Purchaser mutually represent and warrant that that
neither party knows of any broker who has claimed or may have the right to claim
a commission in connection with this transaction, and Seller and Purchaser shall
indemnfy 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 agreements contained in this paragraph. The
representations and obligations under this paragraph shall surive the Closing
or, if the Closing does not occur, the termination of this contract.
SECTION 15. NOTICES
ss.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 REPRESENTATIONS, WARRANTIES, COVENANTS
AND OTHER OBLIGATIONS
ss.16.01. Except as otherwise provided in this contract, no
representations, waranties, covenants or other obligations of Seller set forth
in this contract shall surive 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 ss.4.03 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.
ss.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 Seller to be performed hereunder, except those
obligations of Seller which are expressly stated in this contract to survive the
Closing.
SECTION 17. MISCELLANEOUS PROVISIONS
ss.17.01. This contract embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior agreements,
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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.
ss.17.03. This contract shall be governed by, and construed in
accordance with, the law of the State of New York.
ss.17.04. 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.
ss.17.05. This contract shall be binding upon and shall inure to the
benefit of the paries hereto and their respective heirs or successors and
permitted assigns.
ss.17.06. This contract shall not be binding or effective until
properly executed and delivered by Seller and Purchaser.
ss.17.07. 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.
ss.17.08. 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.
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IN WITNESS WHEREOF, the paries hereto have executed this contract as of the date
first above wrtten.
SELLER:
/s/ Xx Xxxx
--------------------------------------------
XX XXXX (f/k/a Xx Xxxxx)
PURCHASER:
SYMS CORP.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
SCHEDULE A-I
DESCRIPTION OF SYMS LAND
SCHEDULE A-2
DESCRIPTION OF ELMSFORD LAND
2
SCHEDULE A-3
DESCRIPTION OF ADDISON LAND
SCHEDULE B
PERMITTED EXCEPTIONS
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 Premises for the
erection of any structure or structures on, under or above any street or streets
on which the Premises may abut.
3. Unpaid installments of assessments not due and payable on or before
the Closing Date.
4. Financing statements, chattel mortgages and liens on personalty
filed more than 5 years prior to the Closing Date and not renewed, or filed
against property or equipment no longer located on the Premises or owned by
tenants.
5. (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) With respect to the Addison Premises, the state of facts that an
accurate survey would disclose, provided that such facts do not render title
unmarketable.
(e) With respect to the Elmsford Premises and the Syms Premises, the
state of facts disclosed by the Survey dated November 29, 2006 and revised on
December 8, 2006 by Xxxxxx X. X'Xxxxxxx, Professional Land Surveyors and
Engineers.
(f) With respect to the Elmsford Premises and the Syms Premises,
exceptions numbered 2, 4, 5, 6, 7, 9, on Schedule B of the Title Commitment No.
06NYW10595 dated November _, 2006 issued by New York Land Services, Inc, on
behalf of Commonwealth Land Title Insurance Company.
6. The Syms Lease, the Elmsford Lease and the BBB Lease.
SCHEDULE C
PURCHASE PRICE
The entire Purchase Price shall be paid at Closing.
SCHEDULE D
MISCELLANEOUS
1. Title insurer designed by the parties (ss.1.02): NEW YORK LAND
SERVICES, INC, ON BEHALF OF COMMONWEALTH LAND TITLE INSURANCE COMPANY
2. Seller's tax identification number (ss.2.05):
3. Purchaser's tax identification number (ss.2.05):
4. Scheduled time and date of Closing (ss.3.01):
a) With respect to the Syms Premises and the Elmsford Premises,
December 21, 2006
b) With respect to the Addison Premises, upon Purchaser's receipt of a
reasonably acceptable title report and ALTA survey of the Premises.
5. Place of Closing (ss.3.01): Closing in Escrow though the title insurer
designated by the parties
6. Broker, if any (ss.14.01): NONE
7. Address for notices (ss.15.01):
If to Seller: Xx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Purchaser: Syms Corp.
Xxx Xxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxx
Chief Financial Offcer
with a copy to Purchaser's attorney: Katsky Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxx, Esq.
SCHEDULE E
SYMS LEASE
Lease and Agreement, dated as of June 21, 1977, by and between Seller, as
lessor, and Syms Haberdashery, Inc., a New York corporation, as lessee, with
respect to the Syms Premises, which Lease was amended by (i) Lease Modification
Agreement, dated as of July 26, 1983, by and between Seller, as lessor, and
Syms, Inc. (formerly known as Syms Haberdashery, Inc.), a New York corporation,
as lessee, (ii) Lease Modification Agreement, dated as of January 1, 1991, by
and between Seller, as lessor, and Purchaser, as lessee and (iii) Third Lease
Modification Agreement, made as of December 1, 2002, by and between Seller, as
lessor, and Purchaser, as lessee.
ELMSFORD LEASE
Ground Lease, dated as of March 18, 1977, by and between Seller, as lessor, and
Elmsford-1l9 Associates, LLC, as lessee, as evidenced by a Memorandum of Lease,
recorded on October 1, 1998 in Liber 12125 page 232, which Lease was amended by
(i) First Amendment, dated as of April 1, 1998, by and between Seller, as
lessor, and Elsmford-119 Associates, LLC, as lessee and (ii) certain Second
Amendment, dated as of September 24, 1998, by and between Seller, as lessor, and
Elsmford-119 Associates, LLC, as lessee.
