CONTRACT OF SALE EMBASSY INDUSTRIES INC. Seller - with - TELL REALTY LLC Purchaser
EMBASSY
INDUSTRIES INC.
Seller
-
with -
TELL
REALTY LLC
Purchaser
Premises:
|
000
Xxxxx Xxxxxx
Xxxxxxxxxxx,
Xxx Xxxx
|
Certilman
Balin Xxxxx & Xxxxx, LLP
00
Xxxxxxx Xxxxxx
Xxxx
Xxxxxx, Xxx Xxxx 00000
CONTRACT
dated
as
of February 27, 2007, by and between EMBASSY
INDUSTRIES, INC., a
New
York Corporation, having its principal office at 000 Xxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxxx, Xxx Xxxx, 00000 (the, “Seller”), and TELL
REALTY LLC, a
New
York limited liability company, having its principal office at 00-00 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxx, 00000, (“Purchaser”).
WHEREAS,
Seller
owns a parcel of land with the improvements erected thereon, as
follows:
being
in
Farmingdale, Town of Babylon, County of Suffolk, State of New York; known
by
street address 000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxx; and designated as
District 100; Section 5; Block 1; Lot 11 on the Land and Tax Map of Suffolk
County, as more particularly described on Schedule A annexed hereto (the
“Property”);
WHEREAS,
Seller
desires to sell to Purchaser and Purchaser desires to purchase from Seller,
the
Premises (as hereinafter defined) on the terms and conditions set forth
herein;
NOW,
THEREFORE, in
consideration of these premises and the mutual covenants, the parties hereby
covenant and agree as follows:
SECTION
1
1.1 Seller
shall sell to Purchaser and Purchaser shall purchase from Seller, at the
price
and upon the terms and conditions set forth herein: (a) the Property, (b)
all
buildings (the “Buildings”) and improvements, if any, situated thereon
(collectively, the “Improvements”) (c) 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 Property to the center line thereof and to any unpaid award
for
any taking thereof by condemnation, or any damage to the Property by reason
of a
change of grade of any street or highway; (d) the appurtenances, (e) all
right,
title and interest of Seller, in and to the fixtures equipment and other
personal property attached to the Buildings and/or listed on Schedule B attached
hereto; and (f) all licenses, permits, certificates, warranties, and the
like
pertaining to the ownership, use and occupancy of the Property (collectively,
the “Personal Property”). The Property, the Improvements, the Personal Property
and the other interests being sold and purchased as provided in this subsection
1.1 are referred to, collectively, as the “Premises”.
1.2 A.
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
(“Permitted Exceptions”) set forth in Schedule C attached to and made a part of
this Contract and such other matters as Purchaser has agreed to take subject
to,
and (b) such other matters as any other reputable title insurance company
selected by Purchaser and licensed to do business in the State of New York
(the
“Title Company”) shall be willing, without special premium, to omit as
exceptions to coverage or with Purchaser's consent to except with insurance
against collection out of, or enforcement against the Premises.
1
B. Within
twenty (20) days after the date of this Contract, Purchaser shall order a
title
report and shall instruct the Title Company to deliver to Seller’s attorneys, a
title commitment (the “Title Commitment”). Exceptions to title which are not set
forth on Schedule "C" shall each be a "Title Defect."
C. Seller
shall be entitled to a reasonable adjournment of the Closing Date up to ninety
(90) days, in order to give Seller an opportunity to remove any Title Defect,
however, Seller shall not be required to bring any action or proceeding or
otherwise incur any expense in excess of $100,000.00 ("Title Expense") to
remove
any Title Defect. The existence of any taxes, liens, or encumbrances, other
than
the Permitted Exceptions, shall not be objections to title if properly executed
instruments necessary to satisfy the same are delivered to the Title Company
at
or before the Closing, together with recording and filing fees, if any, so
that
the Title Company may omit such taxes, liens, or encumbrances from its schedule
of exceptions to title. If the Premises or any part thereof is subject to
any
lien, the amount of which has not been fixed, the same shall not be a Title
Defect provided the Title Company shall insure Purchaser against collection
of
such lien from the Premises. Notwithstanding anything to the contrary, Seller
shall pay and discharge, without limit as to amount, all mortgages, consensual
liens, mechanic's liens, municipal liens and judgments against
Seller.
D. In
the
event there exists any Title Defect which Seller is unable to cure as described
in paragraph (C) above at the time of Closing, Purchaser shall have the option
of (i) closing title, notwithstanding such Title Defect, without any abatement
of the Purchase Price, other than the Title Expense, or (ii) canceling this
Contract by written notice to Seller within ten (10) days after Purchaser
receives written notice from Seller that it will be unable to cure such Title
Defect. In the event Purchaser elects to cancel this Contract by reason of
the
foregoing, the Downpayment (as hereinafter defined in Section 15) shall be
returned promptly to Purchaser, together with the net cost of title examination,
and neither party under this Contract shall have any further obligation to
the
other, except that Purchaser and Seller shall continue to remain liable under
the provisions of subsection 3.2D and Section 12 hereof.
A. Except
as
provided herein, all notes or notices of violations of law or governmental
ordinances, orders or requirements which were noted or issued prior to the
date
of the Investigation Period Notice Date (defined below) by any governmental
department, agency or bureau having jurisdiction as to conditions affecting
the
Premises shall be removed by or complied with by Seller. If such removal
or
compliance has not been completed prior to the Closing, Seller shall pay
to
Purchaser at the Closing the reasonably estimated unpaid cost to effect or
complete such removal or compliance, and Purchaser shall be required to accept
title to the Premises subject thereto. Purchaser shall take title subject
to all
such notes or notices of violations noted or issued on or after the date
of the
Investigation Period Notice Date. Seller shall be responsible to pay, at
or
prior to Closing, any fines or penalties arising from violations arising
prior
to Closing.
2
B. If
required, Seller, upon written request by Purchaser, shall promptly furnish
to
Purchaser written authorizations to make any necessary searches for the purposes
of determining whether notes or notices of violations have been noted or
issued
with respect to the Premises.
SECTION
2
2.1 The
purchase price (“Purchase Price”) to be paid by Purchaser to Seller for the
Premises is SIX MILLION THREE HUNDRED THOUSAND AND 00/100 ($6,300,000.00)
DOLLARS.
2.2 Upon
execution of this Contract, Purchaser shall pay to Seller THREE HUNDRED FIFTEEN
THOUSAND AND 00/100 ($315,000.00) DOLLARS, by check, subject to collection,
payable to the order of, or by wire transfer to, CERTILMAN BALIN XXXXX &
XXXXX, LLP, AS ATTORNEY (the “Escrow Agent”), who shall hold and disburse the
proceeds and interest earned thereon, if any, (the “Initial Payment”) in
accordance with the provisions of Section 15 hereof.
2.3 Within
three (3) business days following the end of the Investigation Period Notice
Date (hereinafter defined) and failure of Purchaser to cancel this Contract
of
Sale, THREE HUNDRED FIFTEEN THOUSAND AND 00/100 ($315,000.00) DOLLARS, by
check,
subject to collection, payable to the order of, or by wire transfer to,
CERTILMAN BALIN XXXXX & XXXXX, LLP, AS ATTORNEY (the “Escrow Agent”), who
shall hold and disburse the proceeds and interest earned thereon, if any,
(the
“Additional Payment”) in accordance with the provisions of Section 15 hereof.
The Initial Payment and Additional Payment shall hereinafter collectively
be
referred to as the "Downpayment".
2.4 On
the
Closing Date (as such term is defined herein), Purchaser shall pay to Seller
or
its designees the balance of the Purchase Price, in the amount of FIVE MILLION
SIX HUNDRED SEVENTY THOUSAND AND 00/100 ($5,670,000.00) DOLLARS, after receiving
credit for the Downpayment.
2.5 All
sums
which are to be paid to Seller under this Contract shall be paid by unendorsed
certified or cashier’s checks drawn on a bank which is a member of the New York
Clearinghouse, or by wire transfer. Upon three (3) business days’ written notice
from Seller (which may be by e-mail or facsimile to Purchaser's attorneys),
Purchaser shall deliver separate checks at Closing or make separate wire
transfers in the number and amounts requested by Seller as designated in
such
notice.
3
SECTION
3
3.1 A.
Purchaser shall have a period of forty-five (45) days from the date of full
execution (the “Investigation Period”) within which it may conduct
investigations and studies concerning the Premises. (Such investigations
and
studies are hereinafter referred to as the “Purchaser’s Investigation Period
Permitted Activities”). Any report prepared by a party other than Purchaser in
performing such investigations shall hereinafter be referred to as a “Report”.
Purchaser’s Investigation Period Permitted Activities shall be performed
pursuant to the provisions of subsection 3.2 below.
B. During
the Investigation Period, Purchaser shall have the opportunity to inspect
the
Premises which inspection may include, but shall not be limited to (i) an
environmental survey and/or assessment (inclusive of a Phase II assessment)
to
determine the existence of pollutants and/or contaminants and/or hazardous
and/or toxic substances, materials and/or chemicals as defined in Environmental
Laws (defined in subsection 16.2) (hereinafter referred to collectively or
individually as “Hazardous Substances”), (ii) inspection of any underground
storage tanks, (iii) compliance with all applicable laws, statutes, rules
and
regulations imposed by any relevant governmental authority having jurisdiction
over the Premises, (iv) inquiries as to any existing tenancies or occupancies
(if any), and (v) all other matters reasonably affecting or reasonably related
to the transaction as may be appropriate.
C. If,
at or
prior to the expiration of the Investigation Period, Purchaser shall not
be
fully satisfied, in Purchaser’s sole discretion for any or no reason, as to the
suitability of the Premises and all factors concerning same, then, in such
event, Purchaser shall have the right to cancel this Contract by notice to
Seller on or before the last day of the Investigation Period (such date
hereinafter referred to as the “Investigation Period Notice Date”), time being
“of the essence”. In such event, any Report prepared in connection therewith
shall be delivered to Seller. Any notice purporting to cancel this Contract
pursuant to the provisions of this subsection 3.1C after the Investigation
Period Notice Date shall be void and of no force and effect. In the event
Purchaser cancels this Contract, as provided herein, the sole liability of
Seller shall be to cause the Escrow Agent to refund the Downpayment within
ten
(10) days after receipt of Purchaser’s cancellation notice. Upon such
reimbursement, this Contract shall be null and void and the parties hereto
shall
be relieved of all further obligations and liabilities other than any arising
under subsection 3.2D and Section 12 hereof.
D. In
the
event Purchaser does not cancel this Contract as provided in subsection 3.1C,
then, in such event, Seller and Purchaser shall proceed with the transaction
contemplated herein in accordance with the terms hereof.
3.2 A.
“Purchaser’s
Investigation Period Permitted Activities” shall be performed and conducted at
Purchaser’s sole cost and expense and in all respects in a commercially
reasonable manner by Purchaser, its employees, agents, and independent
contractors and Seller shall cooperate in such activities, and provide Purchaser
with all plans, reports, warranties, relative to the Building and/or Premises
to
the extent same are in Seller's possession (at no cost to Seller). In connection
with the foregoing, and for the purpose of conducting and performing Purchaser’s
Permitted Activities, Purchaser and its employees, agents, and independent
contractors shall have the right and license, during the Investigation Period,
to enter onto the Premises as described in Section B below.
4
B. In
order
to obtain entry to the Premises where necessary to perform Purchaser's
Investigation Period Permitted Activities, Purchaser and its employees, agents
and independent contractors and representatives shall notify by telephone
XXXXXX
XXXXXXXXX, a representative of Seller, at (000) 000-0000 of the identity
of each
of the parties intending to enter the Premises and the approximate period
of
time during which they will be located on the Premises. Seller shall coordinate
each and every entry by Purchaser and/or its agents upon the
Premises.
C. Prior
to
any entry upon the Premises to conduct any inspection, Purchaser shall furnish,
or cause its contractors or agents to furnish, to Seller, evidence of insurance
insuring Seller from and against liability resulting from injury to or death
of
any person or persons and damage to or destruction of property, in an amount
not
less than THREE MILLION ($3,000,000.00) DOLLARS, combined single limits,
of
which TWO MILLION ($2,000,000.00) DOLLARS may be by means of an umbrella
policy.
D. Purchaser
shall indemnify, protect, save, defend and hold forever harmless Seller from
and
against all liabilities, obligations, claims, damages, judgments, awards,
penalties, costs, and expenses including, without limitation, reasonable
attorney’s fees and court costs at all levels of proceedings, which Seller may
incur, suffer or sustain, or for which Seller may become obligated or liable
by
reason of any act or omission on the part of Purchaser, its employees, agents,
and/or independent contractors in the performance of conduct of Purchaser’s
Investigation Period Permitted Activities or by reason of any injury to or
death
of persons or loss of or damage to property in connection with, or as a result
of, any such entry or entries upon or use of the Premises by Purchaser, its
employees, agents, and/or independent contractors in connection with Purchaser’s
Investigation Period Permitted Activities or as a result of any liens for
labor
or services performed and/or materials furnished by or for the account of
Purchaser in respect of the Premises. In the event this Contract terminates
for
any reason, Purchaser shall also be obligated to restore the Premises to
substantially the same condition in which it existed prior to the commencement
of Purchaser’s activities thereon. The provisions of this subsection D shall
survive any termination of this Contract.
3.3 Except
as
otherwise provided in this Contract, the closing of title pursuant to this
Contract (the "Closing") shall take place at the office of Seller's counsel
or
at the offices of Purchaser's lender or such lender's attorneys, provided
such
offices are in Nassau, Suffolk, Queens or New York counties on or about
forty-five (45) days following the Investigation Period Notice Date. (The
actual
date of the Closing is hereinafter referred to as the "Closing
Date").
5
SECTION
4
Seller
warrants and represents to Purchaser as follows:
4.1 Neither
the execution of this Contract nor the consummation by Seller of the
transactions contemplated by this Contract will (a) conflict with, or result
in
a breach of, the terms, conditions or provisions of, or constitute a default,
or
result in a termination of, any agreement or instrument to which Seller is
a
party, (b) violate any restriction to which Seller is subject, or (c) result
in
the creation of any lien, charge or encumbrance upon the Premises or any
part
thereof.
4.2 Seller
is
a corporation, duly organized, validly existing and in good standing under
the
laws of the State of New York, authorized to conduct business in the State
of
New York, and is the sole owner of the Premises.
4.3 Seller
has all requisite power and authority, has taken all actions required by
its
organizational documents and applicable law, and has obtained all consents
which
are necessary to authorize or enable it to execute and deliver this Contract
and
to consummate the transactions contemplated in this Contract. The individual
executing this Contract on Seller’s behalf has been duly authorized and is
empowered to bind Seller to this Contract.
4.4 Seller
has not filed for relief as a debtor under any state receivership laws or
federal bankruptcy laws.
4.5 Seller,
to the best of its knowledge and except as set forth on the attached Schedule
"D", does not know of, and has not received any written notice of, the presence
of environmentally hazardous conditions and/or substances emanating from
the
Premises.
4.6 To
the
best of Seller's knowledge, there are no underground storage tanks at the
Premises that have not been legally abandoned.
4.7 Seller
is
not currently insolvent, and the execution and delivery of this Contract
by
Seller, nor Seller’s performance of Seller’s obligations hereunder will render
the Seller insolvent.
4.8 There
are
no outstanding contracts made by Seller for any improvements to the Premises
which have not been fully paid for. This provision shall survive
Closing.
4.9 Seller
shall cause to be discharged all mechanic’s or materialmen’s liens arising from
work or materials furnished to the Premises prior to the Closing.
4.10 Except
as
set forth on Schedule "E" annexed hereto, there are currently no outstanding
service or maintenance contracts with respect to the Premises ("Service
Contracts") to which the Seller is party relating to the ownership, operation
or
use of the Premises which will impose an obligation on Purchaser, and with
respect to these Schedule "E" agreements, each may be cancelled on thirty
(30)
days notice without penalty. Purchaser shall be under no obligation to assume
any such contract for service or maintenance to the Premises from and after
Closing. except as set forth on Schedule "E". This provision shall survive
Closing.
6
4.11 Seller
has not heretofore conveyed any easements, or air rights or other development
rights affecting or appurtenant to the Premises. This provision shall survive
Closing.
4.12 Seller
agrees that it has not, and shall not, without obtaining Purchaser’s prior
written consent in each instance:
(a) enter
into any contract to sell any rights affecting or appurtenant to the Premises;
(b)
initiate,
join in or consent to any change in any private restrictive covenant, easement
or zoning or land use ordinance limited the uses which may be made of the
Premises or any part thereof;
(c)
structurally
alter the Premises except as may be necessary to (i) keep the Premises in
reasonably safe and secure condition, or (ii) as required by law;
(d)
Mortgage
or otherwise encumber the Premises other than those mortgages and encumbrances
presently affecting the Premises as of the date of this Contract; but
nevertheless, nothing herein shall diminish Seller’s obligations to deliver
title in accordance with the terms of this Contract; and
(e) Seller
shall not enter into any new lease, license or occupancy agreement with respect
to any portion of the Premises.
4.13 Seller
shall maintain the fire and liability insurance policies covering the Premises;
and shall maintain the same in full force and effect (or replace the same
with
equivalent or better coverage) between now and the date of Closing.
4.14 There
are
no leases, subleases, licenses or other occupancy agreements affecting the
Premises nor are there any Unfunded Leasing Costs (hereafter defined) as
respect
the Premises. The term Unfunded Leasing Costs means brokerage commissions,
free
rent or rent credits, tenant improvement or work letter allowances and/or
any
other costs to be paid or incurred as a result of an occupancy at the Premises
or any termination of an occupancy at the Premises. This provision shall
survive
Closing.
4.15 There
are
no persons employed by Seller at the Premises for whom Purchaser shall have
any
responsibility for subsequent to Closing. This provision shall survive
Closing.
4.16 Seller
is
not a foreign person as defined in Section 1445 of the Internal Revenue Code
and
the regulations promulgated thereunder.
4.17 At
Closing, Seller shall deliver to Purchaser blueprints, drawings, plans and
specifications in respect to the Premises to the extent in the possession
or
control of Seller, together with any unexpired warranties for the roof and
other
mechanical systems, including HVAC and Seller’s books and records relating to
the maintenance, upkeep and repair of the Premises during Seller’s
ownership.
7
SECTION
5
5.1 Purchaser
warrants and represents to Seller that as of the date hereof:
A.
Neither the execution of this Contract nor the consummation by Purchaser
of the
transaction contemplated by this Contract will (i) conflict with, or result
in a
breach of, the terms, conditions or provisions of, or constitute a default,
or
result in a termination of, any agreement or instrument to which Purchaser
is a
party, (ii) violate any restriction to which Purchaser is subject or (iii)
constitute a violation of any applicable code, resolution, law, statute,
regulation, ordinance, judgment, rule, decree or order.
5.2 Purchaser
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of New York.
5.3 Purchaser
has, or will have at Closing, all requisite authority, has taken all actions
required by its organizational documents and applicable law, and has obtained
all consents which are necessary to authorize or enable it to execute and
deliver this Contract and to consummate the transactions contemplated in
this
Contract. The individuals executing this Contract on Purchaser’s behalf have
been duly authorized and are empowered to bind Purchaser to this
Contract.
SECTION
6
6.1 Seller
shall deliver possession of the Premises to Purchaser at the Closing vacant
and
free from any leases, agreements, licenses or other rights of
possession.
SECTION
7
7.1 Purchaser’s
obligation to close title pursuant to the terms of this Contract is subject
to
and conditioned upon the following:
A. Each
of
the representations and warranties made by Seller in Section 5 hereof being
true
and complete in all material respects on the Closing Date as if made on and
as
of such date. At the Closing, Seller shall deliver to Purchaser a certification
to this effect; and
8
B. Seller
shall have performed all obligations which it is required to perform pursuant
to
the provisions of this Contract.
7.2 Seller’s
obligation to consummate the sale of the Premises pursuant to the terms
of this
Contract is subject to and conditioned upon the following:
A.
Each
of
the representations and warranties made by Purchaser in Section 5 hereof
being
true and complete on the Closing Date as if made on and as of such date.
At the
Closing, Purchaser shall deliver to Seller a certification to this
effect.
B. Purchaser
shall have performed all obligations which it is required to perform pursuant
to
the provisions of this Contract.
7.3 Seller
covenants that between the date of the Contract and the Closing:
A. Seller
shall not modify or amend any existing contracts regarding the operation
and
maintenance of the buildings, including the Service Contracts or enter into
any
new service contract.
B.
Seller
shall maintain the Premises consistent with its past course of maintenance,
such
that it is, as of Closing, in substantially the same condition existing as
of
the expiration of the Investigation Period, reasonable wear and tear
excepted.
C.
Seller
shall maintain in full force and effect until the Closing, all insurance
policies on the Premises which exist as of the date of the
Contract.
D.
No
fixtures, equipment or personal property included in this sale shall be removed
from the Premises unless the same are replaced with similar items of at least
equal quality prior to the Closing.
E.
Seller
shall not intentionally place any lien or other encumbrance upon or otherwise
affecting the Premises, nor shall Seller enter into any lease or other occupancy
agreement for any part of the Premises.
SECTION
8
At
the
Closing, Seller shall deliver the following to Purchaser:
8.1 A
statutory form of Bargain and Sale Deed With Covenants 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 to Purchaser fee simple
title to the Premises, subject only to the Permitted Exceptions.
9
8.2 A
form
TP-584 duly executed by Seller, a New York State Equalization Form (RP-5217)
executed by Seller, and any other instruments, affidavits and/or tax returns
as
are customarily executed by the seller of an interest in real property
in
connection with the recording of a deed.
8.3 The
Service Contracts, which shall be initialed by Purchaser, to the extent
same are
assignable by Seller to Purchaser as set forth on Schedule "E".
8.4 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.
8.5 An
assignment to Purchaser, without recourse or warranty, of all of the interest
of
Seller in those Service Contracts, insurance policies, certificates, permits
and
other documents to be delivered to Purchaser at the Closing which are then
in
effect and are assignable by Seller to Purchaser.
8.6 A
Non-foreign affidavit with respect to Seller as required by IRC Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) and the
regulations issued thereunder, and Purchaser shall not deduct or withhold
any
portion of the Purchase Price pursuant to Section 1445 of the Code.
8.7 Such
affidavits as the Title Company may 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 or similar to
Seller’s name; and other documents as the Title Company may reasonably
require.
8.8 Checks
to
the appropriate officers in payment of all applicable real property transfer
taxes and copies of any required tax returns therefor executed by Seller,
unless
Seller elects to have Purchaser pay any of such taxes and credit Purchaser
with
the amount thereof.
8.9 To
the
extent that they are then in Seller’s possession, copies of current maintenance
records. Seller shall make all other Building files available to Purchaser
for
copying.
8.10 A
resolution of Seller authorizing the sale and delivery of the deed and setting
forth facts showing that the transfer complies with all applicable
law.
8.11 Letter
authorizing the Escrow Agent to disburse the Downpayment to Seller.
10
8.12 Exclusive
possession of the Premises in the condition required by this Contract,
and keys
for the Building and any fences and/or gates to the extent that same are
in
Seller’s possession.
8.13 A
Xxxx of
Sale for the Personal Property.
SECTION
9
At
the
Closing, Purchaser shall:
9.1 Deliver
the balance of the Purchase Price, subject to adjustment as provided in
this
Contract, by immediately available federal funds transferred by wire to
such
account(s) in such bank(s) as Seller shall designate; or by certified or
official bank check(s) to Seller and/or its designees, at Seller’s
option.
9.2 Deliver
to Seller, a letter authorizing the Escrow Agent to disburse the Downpayment
to
Seller.
9.3 Deliver
to Seller the certification referred to in subsection 7.2A.
9.4 Deliver
to Seller a form 1099B prepared by Seller.
9.5 Cause
the
deed to be recorded, duly complete all required real property transfer tax
returns and cause all such returns and checks in payment of such taxes to
be
delivered to the Title Company for filing with the appropriate offices promptly
after the Closing.
9.6 Deliver
to Seller such other documents as are required by this Contract to be delivered
by Purchaser or as reasonably requested by Seller in order to effectuate
the
provisions of this Contract.
9.7 Execute
and deliver to Seller an assumption of Service Contracts to be assumed by
Purchaser.
11
SECTION
10
10.1 The
following apportionments shall be made between the parties at the Closing
as of
the close of business on the day immediately prior to the Closing
Date:
A.
real
estate taxes, water charges and sewer rents, if any, on the basis of the
lien
period for which assessed, except if there is a water meter on the Premises,
apportionment at Closing shall be based on the actual reading, which shall
be
taken no more than thirty (30) days prior to Closing, subject to adjustment
after Closing when the next reading is available;
If
the
Closing shall occur before a new tax rate is fixed, the apportionment of
taxes
at the Closing shall be based upon the tax rate for the immediately preceding
period applied to the latest assessed valuation. Installments for assessments
noted against the Premises prior to Closing shall be the responsibility
of the
Seller;
B. value
of
fuel stored on the Premises, if any, at the price then charged by Seller’s
supplier, including any taxes, based upon a statement of such supplier
dated
within the week of Closing;
C. charges
under any transferrable Service Contracts; and
D. any
other
sums required to be paid by either party to the other at the Closing pursuant
to
the provisions of this Contract.
10.2 In
the
event the net apportionment or payment is required to be made by Purchaser,
the
amount due shall be added to the payment due at the Closing and paid either
by
wire transfer or by certified check or official bank check; or, in the
event the
net apportionment or payment is required to be made by Seller, the amount
due
shall be applied, as a credit against the amount due at the Closing. Adjustments
may be made by personal check up to $5,000.00.
10.3 The
parties hereto agree that any errors or omissions in computing apportionments
at
the Closing shall be corrected promptly after discovery, but in no event
later
than six (6) months after the Closing.
10.4 Seller
shall pay the New York State transfer tax on the deed of conveyance. Purchaser
shall pay the following costs: any transfer taxes imposed upon a Purchaser
by
statute, if any, the title insurance premium and the services charged by
the
Title Company (if any), the cost of all recording charges in connection with
the
Closing other than charges and costs incurred to record documents in connection
with the clearing of title by Seller pursuant to this Contract (which recording
charges and costs and Title Company service fees shall be paid by Seller),
except as otherwise provided herein.
12
10.5 Seller
agrees to cooperate with Purchaser, at no cost to Seller, with regard to
any
request by Purchaser to take an assignment to its lender of any existing
mortgages encumbering the Premises.
10.6 The
provisions of this Section 10 shall survive the Closing in accordance with
the
terms
hereof.
SECTION
11
11.1 In
the
event that on the Closing Date or after any permitted adjournment of the
Closing
Date, if Seller shall have been unable to perform any material covenant
and/or
agreement contained herein which is to be performed by Seller, or if any
of the
conditions precedent to Purchaser’s obligation to consummate the transactions
contemplated hereby shall have failed to occur due to Seller's inability
to
perform same, Purchaser may, at its option (i) terminate this Contract
by giving
written notice of termination to Seller, in which event Purchaser shall
(a)
receive a refund of the Downpayment and (b) Purchaser shall receive from
Seller
the net costs of Purchaser's title search and survey fees, and thereafter
neither party under this Contract shall have any further obligation to
the
other, or (ii) close title to the Premises without any abatement of the
Purchase
Price, in which event Purchaser shall be deemed to have waived any rights
it may
have had on account of such untruth, failure to perform or failure to occur.
Notwithstanding the foregoing, if Seller defaults under the terms of the
Contract, Purchaser shall have all rights and remedies available to it
in law or
equity, including specific performance.
11.2 If
Purchaser defaults and fails to cure said default within five (5) days
after
receipt of written notice, the entire damages which Seller will thereby
sustain
cannot be exactly determined; therefore, it is agreed that in the event
of any
default by Purchaser, all amounts paid by Purchaser as a deposit pursuant
to
this Contract shall be considered as liquidated damages for such default
by
Purchaser, and shall become the exclusive property of, and be permanently
retained by Seller as Seller’s sole remedy and Purchaser’s sole obligation in
any and all events. Seller shall retain such amounts as liquidated damages
and
no further rights or causes of action shall remain against Purchaser, nor
shall
Purchaser have any further rights under this Contract or otherwise, with
respect
to Seller, except that Purchaser and Seller shall continue to remain liable
under the provisions of subsection 3.2 D and Section 12 hereof.
SECTION
12
12.1 Seller
and Purchaser each represent and warrant to the other that no broker, finder
or
similar persons other than XXXXX/PHILIPS and OXFORD & XXXXXXX (collectively,
“Broker”) was involved in or connected with this transaction. Purchaser further
represents that no other broker, finder or similar person other than
XXXXX/PHILIPS brought the Premises to the attention of Purchaser. Purchaser
and
Seller each hereby indemnify and agree to defend, save and hold the other
harmless of and from all loss, cost, liability and expense, including, without
limitation, reasonable attorneys’ fees, which may be incurred by the other in
connection with any claim for commission or other compensation asserted against
such party, whether based on a claim of brokerage, or based on a contract,
quasi-contract or tort, made by any person, firm or corporation other than
Broker who claims to have dealt with the other party, i.e., Seller or Purchaser,
as the case may be, in connection with this transaction. Seller shall pay
Broker
pursuant to a separate agreement between Seller and Broker, and shall hold
Purchaser harmless from and indemnify it against any claims made by such
Broker
by reason of Seller's non-payment of such commission due Broker.
13
The
representations and obligations under this Section 12 shall survive the Closing
or, if the Closing does not occur for any reason, shall survive the termination
of this Contract.
SECTION
13
13.1 Any
notice required to be given hereunder shall be given in writing by depositing
such notice in a post-paid wrapper, in an official depository under the
exclusive care and custody of the United States Postal Service within New
York
State, or by Express Mail, Federal Express or messenger service (with proper
receipt therefor), addressed to the party at the address hereinabove set
forth
with a copy of any such notice by a similar method of delivery or by fax
transmission (with proper receipt therefor and a copy sent by mail)
simultaneously to the attorney for such party as follows:
IF
TO SELLER:
|
Embassy
Industries, Inc.
000
Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxx Xxxx 1747
Attention:
Xxxxxxx Xxxxxxxx
Tel.
(000) 000-0000:
|
WITH
A COPY:
|
Certilman
Balin Xxxxx & Xxxxx, LLP
00
Xxxxxxx Xxxxxx
Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxx, Esq.
Tel.
(000) 000-0000
Fax
(000) 000-0000
E-Mail:
xxxxxxxx@xxxxxxxxxxxxxx.xxx
|
IF
TO PURCHASER:
|
Tell
Realty LLC
c/o
Xxx Tell and Son, Inc.
00-00
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Tel.
(000) 000-0000
|
14
WITH
A COPY:
|
Xxxx
Xxxxxxx, Esq.
Mandell,
Mandell, Xxxx & Edelman
0000
Xxxxxx Xxxxxx
Xxx
Xxxx Xxxx, Xxx Xxxx 00000
Tel.
(000) 000-0000
Fax
(000) 000-0000
E-mail:
xxxxxxxx@xxxxxxx.xxx
|
Any
notice
hereunder may be given by the attorney for a party and shall have the same
force
and effect as if given by the party. Either party may by notice change the
address at which notices are to be given hereunder. Notices shall be deemed
given upon receipt or first refusal thereof.
SECTION
14
14.1 In
the
event of condemnation of the Premises or any portion thereof, between the
date
hereof and the Closing Date, which would materially interfere with or adversely
affect the Premises or Purchaser's intended use, Purchaser shall have the
option
to terminate this Contract by written notice to Seller, in which event the
sole
liability of Seller shall be to cause the Escrow Agent to refund the Downpayment
to Purchaser. Upon such reimbursement, this Contract shall be null and void
and
the parties hereto shall be relieved of all further obligations and liabilities
other than any arising under subsection 3.2 and Section 12 hereof. In the
event
there is a condemnation and Purchaser does not elect to terminate this Contract,
Seller shall assign to Purchaser any condemnation award it may be entitled
to
receive and Seller and Purchaser shall proceed with the transaction contemplated
herein in accordance with the terms hereof.
14.2 With
respect to a casualty at the Premises, the provisions of Section 5-1311 of
the
General Obligations Law shall apply to the sale and purchase provided for
in the
Contract.
SECTION
15
15.1 Escrow
Agent shall hold the proceeds of the checks delivered to Escrow Agent for
the
Downpayment, in escrow, in an interest-bearing account maintained at M&T
Bank. 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
15
15.2 The
Downpayment shall be held by the Escrow Agent until the Closing or sooner
termination of this Contract and Escrow Agent shall pay over the interest
or
income earned thereon, if any, to the party entitled to the Downpayment.
The
party receiving such interest or income shall pay any income taxes due thereon.
If for any reason the Closing does not occur pursuant to the provisions of
this
Contract and either party makes a written demand upon Escrow Agent, in the
manner required for notices, for payment of the Downpayment, then Escrow
Agent
shall give written notice, in accordance with the provisions of subsection
13.1
to the other party of such demand. If Escrow Agent does not receive a written
objection from the other party to the proposed payment of the Downpayment
pursuant to the aforesaid demand within ten (10) business days after the
delivery of such notice by Escrow Agent, Escrow Agent is hereby authorized
to
make such payment in accordance with the aforesaid demand. If Escrow Agent
receives written objection from the other party to the proposed payment of
the
Downpayment pursuant to the aforesaid demand within such ten (10) business
day
period or if for any other reason Escrow Agent in good faith shall elect
not to
make such payment, Escrow Agent shall continue to hold the Downpayment until
otherwise directed by written instructions from Seller and Purchaser or a
final
judgment of a court of competent jurisdiction. Escrow Agent, however, shall
have
the right at anytime to deposit the Downpayment with the Clerk of any Court
of
competent jurisdiction in the State of New York, with a venue of Suffolk
County
or Nassau County, and Escrow Agent shall give written notice of such deposit
to
the Seller and the Purchaser, and upon such deposit being made, Escrow Agent
shall be discharged from all obligations and responsibilities hereunder.
The
parties acknowledge that Escrow Agent is acting solely as a stakeholder at
their
request and for their convenience, that Escrow Agent may act upon any writing
believed by it in good faith to be genuine and to be signed and presented
by the
proper person and the Escrow Agent shall not be deemed to be the agent of
either
of the parties, and that the Escrow Agent shall not be liable to either of
the
parties for any act or omission on its part unless taken or suffered in bad
faith, or in willful disregard of this Contact or involving gross negligence.
Seller and Purchaser shall jointly and severally indemnify, defend and hold
Escrow Agent harmless from and against all costs, claims and expenses, including
reasonable attorneys’ fees, incurred in connection with the performance of
Escrow Agent’s duties hereunder, except with respect to actions or omissions
taken or suffered by Escrow Agent in bad faith, in willful disregard of this
Contract or involving gross negligence. As between Purchaser and Seller,
the
losing party shall pay all such costs, claims, expenses and fees. If the
Downpayment shall not earn any interest, or no interest be paid thereon by
reason of the withdrawal of the proceeds, or part thereof, under the provisions
of this Contract or before interest shall be earned or credited, or during
any
period of reasonable delay in opening an account, Escrow Agent shall not
be
liable by reason thereof. Notwithstanding anything contained herein to the
contrary, Escrow Agent may represent Seller as Seller’s counsel in any action,
suit or other proceeding between Seller and Purchaser or in which Seller
and
Purchaser may be involved. Escrow Agent shall have no duties or responsibilities
except as set forth herein. Escrow Agent shall not be bound by any modification
of the Contract unless the same is in writing and signed by Purchaser and
Seller
and, if Escrow Agent’s duties hereunder are not affected, unless Escrow Agent
shall have given prior written consent thereto. The provisions relating to
the
indemnification of Escrow Agent shall survive the Closing or, if the Closing
does not occur for any reason, shall survive the termination of this
Contract.
16
SECTION
16
SECTION
17
17.1 A.
Purchaser acknowledges that it has fully examined the Premises or will, if
applicable, have fully examined the Premises during the Inspection Period
and is
purchasing the Premises in an “as is” condition “with all faults” and
specifically and expressly without any warranties, representations or
guarantees, from or on behalf of the Seller and its agents, other than as
set
forth elsewhere in this Contract. Purchaser has not relied, and is not relying,
upon any information, document, sales brochures or other literature, maps
or
sketches, projection, proforma, statement, representation, guarantee or warranty
(whether express or implied, or oral or written, or material or immaterial)
that
may have been given by or made by or on behalf of the Seller, other than
as set
forth elsewhere in this Contract.
B. Purchaser
hereby acknowledges that it shall not be entitled to, and should not, rely
on
Seller or its agents as to: (i) the quality, nature, adequacy or physical
condition of the Premises including, but not limited to, the structural
elements, foundation, roof, appurtenances, access, landscaping, parking
facilities or the electrical, mechanical, HVAC, plumbing, sewerage or utility
systems, facilities or appliances at the Premises, if any; (ii) the quality,
existence, nature, adequacy or physical condition of soils, sub-surface support
or ground water at the Premises; (iii) the existence, quality, nature, adequacy
or physical condition of any utilities serving the Premises; (iv) the existence,
quality, nature or adequacy of any ability to access utilities, including,
but
not limited to, electricity, natural gas, water and sewer; (v) the existence,
quality, nature, adequacy, physical condition, or ability to access any rights
of way or roads of any kind; (vi) the development potential of the Premises,
its
habitability, merchantability or fitness, suitability or adequacy of the
Premises for any particular purpose; (vii) the zoning classification, use
or
other legal status of the Premises; (viii) the existence, applicability,
quality
or nature of any setback requirements; (ix) the Premises’ or its operations’
compliance with any applicable codes, laws, regulations, statutes, ordinances,
covenants, conditions or restrictions or any governmental or quasi-governmental
entity or of any other person or entity; (x) the quality of any labor or
materials relating in any way to the Premises; or (xi) compliance with any
environmental or occupational protection, pollution, subdivision or land
use
laws, rules, regulations, orders or requirements including, but not limited
to,
those pertaining to the handling, generating, treating, storing or disposing
of
any hazardous waste, material or substance. The provisions of this paragraph
shall survive the closing.
C. Notwithstanding
anything contained herein to the contrary, including Paragraph 17.1A and
B
above, the Premises shall be delivered vacant and broom clean at Closing
with
all systems, including, but not limited to, electrical, heating, plumbing,
air
conditioning, if any, in working order, and the roof shall be delivered free
of
leaks.
17
SECTION
18
18.1 Purchaser
shall not assign this Contract or the rights and obligations hereunder without
the prior written consent of Seller. Provided such consent is given, no such
assignment of Purchaser’s interest in this Contract, however, shall be valid or
binding upon Seller unless and until (a) a duplicate original thereof, in
form
satisfactory to Seller, assigning to the assignee all of Purchaser’s right,
title and interest in this Contract, including the Downpayment, shall be
delivered to Seller and (b) an agreement, in form reasonably satisfactory
to
Seller, in which the assignee shall assume and agree to perform and be bound
by
all of the terms, covenants and conditions of this Contract, shall be delivered
to Seller. The aforesaid documents shall be delivered to Seller within three
(3)
days of such assignment. Notwithstanding the aforesaid assignment, the
obligations of Purchaser named herein under this Contract shall not be
discharged, released or impaired by such assignment. For purposes of this
paragraph, any transfer of a majority of the beneficial ownership of the
Purchaser entity shall be deemed an assignment prohibited
hereunder.
Notwithstanding
the foregoing, Purchaser shall have the right to assign this Contract to
another
entity with one or more of the same principal(s) as Xxx Tell and Sons,
Inc.
SECTION
19
19.1 Seller
and Purchaser may desire to exchange, for other property of like kind and
qualifying use within the meaning of Section 1031 of the Internal Revenue
Code
of 1986, as amended and the Regulations promulgated thereunder, fee title
in the
property which is the subject of this Contract. Seller and Purchaser expressly
reserve the right to assign its rights, but not its obligations, hereunder
to a
Qualified Intermediary as provided in IRC Reg. 1.1031(k)-1(g)(4) on or before
the Closing Date. Seller and Purchaser shall cooperate with each other in
connection therewith.
SECTION
20
20.1 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.
20.2 The
Section headings 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.
20.3 This
Contract embodies and constitutes the entire understanding between the parties
with respect to the transaction contemplated herein, and all prior agreements,
understandings, representations and statements, oral or written, are merged
into
this Contract. Neither this Contract nor any provisions hereof may be waived,
modified, amended, discharged or terminated except by an instrument signed
by
the party against whom the enforcement of such waiver, modification, amendment,
discharge or termination is sought, and then only to the extent set forth
in
such instrument.
18
20.4 The
acceptance of a deed by Purchaser shall be deemed to be a full performance
and
discharge of every agreement and obligation on the part of Seller to be
performed pursuant to the provisions of this Contract, except those, if any,
which are herein specifically stated to survive the Closing. No representation,
warranty or obligation of either party to this Contract shall survive the
delivery of such deed except as otherwise expressly set forth in this
Contract.
20.5 This
Contract and the terms and provisions hereof shall inure to the benefit of
and
be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors and permitted assigns.
20.6 This
Contract shall not be binding or effective until properly executed and delivered
by Seller and Purchaser to each other.
20.7 In
the
event of any dispute with respect to the reasonableness of any failure or
refusal of Seller to grant its consent or approval or to act reasonably in
connection with any provisions of this Contract where Seller has agreed not
to
unreasonably withhold its consent or approval or has agreed to act in a
reasonable manner, Purchaser may, as its exclusive remedy, seek specific
performance of such consent or approval or act. In no event, however, will
Seller be liable for money damages whatsoever by reason of such
actions.
20.8 Seller
represents that its Federal Employer Identification Number is 00-0000000;
and
Purchaser represents that its Federal Employer Identification Number is
pending.
20.9 In
the
event any portion of this Contract shall be declared by any court of competent
jurisdiction to be invalid, illegal or unenforceable, such portion shall
be
deemed severed from this Contract and the remaining parts hereof shall remain
in
full force and effect, as fully as though such invalid, illegal or unenforceable
portion had never been part of this Contract, provided that no material rights
of either party shall be impaired.
20.10 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.
20.11 The
parties agree that this Contract shall be governed by, and construed in
accordance with the laws of the State of New York.
20.12 This
Contract may be executed in any number of counterparts which together shall
constitute the agreement of the parties.
19
20.13 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. Purchaser agrees that it shall not record this Contract
or any
memorandum or assignment thereof. Should Purchaser violate the provisions
of the
foregoing sentence, this Contract, at Seller’s option, shall become null and
void, whereupon all rights of the Purchaser shall cease and terminate and
Seller
shall have the right to retain the Downpayment as and for liquidated damages
on
account of such default by Purchaser.
20.14 Purchaser
and Seller hereby waive trial by jury in any action, proceeding or counterclaim
arising out of this Contract, provided such waiver is not prohibited by any
laws
of the State of New York. Any action or proceeding brought by either party
hereto against the other, directly or indirectly, arising out of this Contract,
shall be instituted in a court in Suffolk County and all motions in any such
action shall be made in Suffolk County. This paragraph shall survive the
delivery of the Deed.
20.15 Purchaser
shall accept unacknowledged receipts, checks, letters, statements or other
proof
as to the amount of any liens on the property in the event that said liens
are
less than the record amounts and similar proof will be acceptable as to the
payment of such liens, provided that the Title Company omits any exception
as to
such liens from Purchaser’s title policy.
20.16 No
failure or delay of either party in the exercise of any right given to such
party hereunder or the waiver by any party of any condition hereunder for
its
benefit (unless the time specified herein for exercise of such right, or
satisfaction of such condition, has expired) shall constitute a waiver of
any
other or further right nor shall any single or partial exercise of any right
preclude other or further exercise thereof or any other right. The waiver
of any
breach hereunder shall not be deemed to be a waiver of any other or any
subsequent breach hereof.
20.17 This
Contract is completely non-recourse as to Seller, and as such, only Seller’s
interest in the Premises shall be subject to execution, attachment or any
other
claim or proceeding on account of any obligation of Seller
hereunder.
20.18 The
personal property referred to in this Contract shall be deemed conveyed by
the
Deed, and no part of the Purchase Price shall be deemed allocated to such
personal property.
20
20.19 XXX
Contingency.
This
Contract is subject to and conditioned upon the adoption by the Town of Babylon
Industrial Development Agency (the "Town XXX") of an Inducement Resolution
evidencing the intention of the Town XXX to provide certain financial assistance
with respect to the Premises. Purchaser shall promptly submit its application
for the Inducement Resolution and diligently pursue same during the
Investigation Period. In the event Purchaser has not received the Inducement
Resolution by the last day of the Investigation Period, Purchaser may terminate
this Contract by notifying Seller of same before the Investigation Period
Notice
Date, time being "of the essence". In such event, the sole liability of Seller
shall be to cause the Escrow Agent to refund the Downpayment within ten (10)
days after receipt of Purchaser's cancellation notice. Upon reimbursement,
this
Contract shall be null and void and the parties shall be relieved of all
further
obligations and liabilities, other than any arising under Subsection 3.2D
and
Section 12 hereof.
BALANCE
OF PAGE INTENTIONALLY LEFT BLANK
21
IN
WITNESS WHEREOF, the
parties hereto have executed this Contract as of the date first above
written.
SELLER:
EMBASSY
INDUSTRIES, INC.
BY: /s/
Xxxxxx X. Xxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxx, Xx.
Title:
Vice President
PURCHASER:
TELL
REALTY LLC
BY: /s/
Marc Tell
Name:
Marc Tell
Title:
Managing Partner
Read
and
Agreed:
For
Purposes of §§ 2.2, 2.3 and 15
CERTILMAN
BALIN XXXXX & XXXXX, LLP
By: /s/
Xxxx Xxxxxxx
Escrow
Agent
22
SCHEDULE
A
LEGAL
DESCRIPTION
SEE
ANNEXED
SCHEDULE
A
ALL
THAT
CERTAIN PLOT, PIECE OR PARCEL OF LAND, SITUATE, LYING AND BEING AT PINELAWN,
EAST FARMINGDALE, TOWN OF BABYLON, XXXXXX XX XXXXXXX XXX XXXXX XX XXX XXXX,
XX
THE EASTERLY SIDE OF XXXXX STREET AND MORE PARTICULARLY BOUNDED AND DESCRIBED
AS
FOLLOWS:
BEGINNING
AT A POINT ON THE EASTERLY SIDE OF XXXXX STREET, DISTANT 788.25 FEET
NORTHEASTERLY AS MEASURED ALONG THE SOUTHERLY AND THEN EASTERLY SIDE OF
XXXXX
STREET FROM THE EXTREME NORTHEASTERLY END OF A LINE HAVING LENGTH OF 28.28
FEET,
WHICH SAID LINE CONNECTS THE SOUTHERLY SIDE OF XXXXX STREET AND THE EASTERLY
SIDE OF NEW HIGHWAY, WHICH SAID POINT OF BEGINNING IS ALSO THE SOUTHWESTERLY
CORNER OF THE PREMISES HEREIN DESCRIBED;
RUNNING
THENCE ALONG THE SAID EASTERLY SIDE OF XXXXX STREET IN AN NORTHERLY DIRECTION
AND ALONG A CURVE BEARING TO THE LEFT HAVING A RADIUS OF 110 FEET AN ARC
DISTANCE OF 63.04 FEET TO A POINT;
THENCE
STILL ALONG THE EASTERLY SIDE OF XXXXX STREET, NORTH 4 DEGREES 54 MINUTES
30
SECONDS EAST, 240.49 FEET TO A POINT;
THENCE
SOUTH 85 DEGREES 05 MINUTES 30 SECONDS EAST, 575.83 FEET TO A
POINT;
THENCE
SOUTH 37 DEGREES 12 MINUTES 05 SECONDS WEST, 169.81 FEET TO A
POINT;
THENCE
SOUTH 02 DEGREES 08 MINUTES 10 SECONDS WEST, 200.18 FEET TO A
POINT;
THENCE
NORTH 85 DEGREES 27 MINUTES WEST, 434.90 FEET TO A POINT;
THENCE
NORTH 54 DEGREES 20 MINUTES 56 SECONDS WEST, 90.14 FEET TO A POINT IN THE
EASTERLY SIDE OF XXXXX STREET, THE POINT OR PLACE OF BEGINNING.
FOR
INFORMATION ONLY: DISTRICT 0100 SECTION 005.00 BLOCK 01.00 XXX
000.000
Xxxxxx Xxxxxx Address: |
000
Xxxxx Xx.
Xxxxxxxxxxx,
XX
|
SCHEDULE
B
PERSONAL
PROPERTY
NONE
SCHEDULE
C
PERMITTED
EXCEPTIONS
a.
Zoning
and subdivision laws, regulations and ordinances and landmark, historic or
wetlands designation.
b.
State
of
facts shown on the survey of the Premises made by Xxxxxx X. Xxxxxxxxxxx,
dated
March 27, 1996 and updated December 27, 2002, and any additional facts as
would
be shown by an updated survey provided title is not rendered unmarketable
at
regular rates.
c.
General
real estate taxes and special assessments, water and sewer charges and all
other
liens and charges of every description which are a lien but are not then
due and
payable or delinquent or are the subject of apportionment pursuant to Section
10
of this Contract.
d.
Standard
printed exceptions contained in the form jacket of fee title policy then
issued
by the title insurance company insuring the fee title with regard to taxes
or
assessments which are not shown as existing liens by the records of any taxing
authority that levies taxes or assessments on real property or by the public
records.
e. Non-material
variations between fences, walls, xxxxxx and the record lines of the Premises
of
up to one (1) foot.
f. Rights
of
utilities, if any, to maintain and operate lines, wires, cables, poles and
distribution boxes in, over and upon said Premises for service to the
Premises.
g. Covenants,
easements, agreements, declarations, licenses and reservations presently
of
record, if any, provided the same do not prohibit the present use and
maintenance of existing structures on the Premises.
SCHEDULE
D
HAZARDOUS
SUBSTANCES
1. "No
Further Action" Letter from the County of Suffolk Department of Health Services
dated May 30, 2006.
2. New
York
State Department of Environmental Conservation Letter dated June 16,
2006.
3. Clarification
Letter from County of Suffolk Department of Health Services dated June 26,
2006.
4. E-mail
correspondence from New York State Department of Environmental Conservation
dated August 11, 2006 removing the Premises from the database as a source
of
contamination.
SCHEDULE
E
SERVICE
CONTRACTS
1. ADT
Fire
and Security Alarm Service
2. Phone
service - designated lines for fire alarm and security alarm.