AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made as of the Date of this
Agreement (as defined in Section 7.15) by and between DVL, INC, a Delaware
Corporation, having an address at 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Seller"), and 000 XXXXXXXX ASSOCIATES, LLC, a New York limited
liability company, having an address at 00 Xxxxx Xxxx Xxxxxx, Xx. Xxxxxx, Xxx
Xxxx 00000 (the "Buyer").
W I T N E S S E T H
ARTICLE 1
RECITALS
1.01 The Property. Seller is the owner of certain real property consisting
of land and the buildings and improvements located thereon, situated in Town of
Ft. Xxxxxx, County of Washington, State of New York as more fully described on
Exhibit "A" attached hereto.
1.02 Purpose. Seller desires to sell the Property to Buyer and Buyer
desires to purchase the same.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Deposit, as defined in subparagraph 2.02(b), and other
good and valuable consideration, the mutual receipt and legal sufficiency of
which is hereby acknowledged, Buyer and Seller hereby covenant and agree as
follows:
ARTICLE 2
SALE AND PURCHASE
2.01 Sale and Purchase. Seller agrees to sell and convey, and Buyer agrees
to purchase all of Seller's right, title and interest in and to the Property
including; (i) all right, title and interest, if any, in and to any land lying
in the bed of any street, road, or avenue, open or proposed, in front of or
adjoining the Property, to the centerline thereof, (ii) rights of way or
passageways appurtenant to or benefiting the Property, (iii) any award made or
to be made on account of any taking of any portion of the Property by any public
purpose, organization or entity and any award made for damages to the Property
or any part thereof by reason of change of grade or the closing of any street,
road or avenue, (iv) all strips and gores, if any, abutting or adjoining the
Property, and (v) all other rights, benefits and privileges appurtenant to or
benefiting the Property.
2.02 Purchase Price. The purchase price for the Property (the "Purchase
Price"), shall be FOUR HUNDRED SEVENTY-FIVE THOUSAND and 00/100 DOLLARS
($475,000.00). The Purchase Price shall be paid to Seller by Buyer in the
following manner:
(a) An initial deposit in the amount of TWENTY-THREE THOUSAND SEVEN
HUNDRED FIFTY and 00/100 DOLLARS ($23,750.00) (the "Initial Deposit"), to be
delivered by Buyer to Xxxxxxxxxx & Xxxxx, LLP (the "Escrow Agent") by wire
transfer of
immediately available funds, no later than 3:00 p.m. (Eastern Time) on the
second Business Day (as hereinafter defined) after the Date of this Agreement.
(b) An additional deposit in the amount of ELEVEN THOUSAND EIGHT
HUNDRED SEVENTY-FIVE and 00/100 DOLLARS ($11,875.00) (the "Additional Deposit")
to be delivered by Buyer to Escrow Agent by wire transfer of immediately
available funds, no later than 3:00 p.m. (Eastern Time) on the second Business
Day after the Due Diligence Expiration Date (as hereinafter defined). The
Initial Deposit and the Additional Deposit are hereinafter collectively referred
to as the "Deposit".
(c) Any interest earned on the Deposit shall be deemed to be part of
the Deposit and shall be paid together with the principal portion of the
Deposit, it being understood that any interest earned on the Deposit shall not
be credited to the Purchase Price upon the Closing and shall, upon the Closing,
be and remain the property of Seller. The wire transfers shall be made by Buyer
in accordance with the instructions attached hereto as Exhibit B. If Escrow
Agent shall not receive the Deposit, in immediately available funds, within the
time period specified above, Seller shall have the immediate right to terminate
this Agreement by notice to Buyer and have available to it all the rights and
remedies herein for a Buyer's breach.
(d) In the event that the purchase and sale of the Property closes
as contemplated by this Agreement, the Escrow Agent shall pay the Deposit plus
any accrued interest to Seller at Closing.
(e) In the event that the Buyer fails to perform any of the terms or
conditions of this Agreement, then, the Deposit plus, if any, accrued interest
shall be paid to Seller by Escrow Agent and retained by Seller as liquidated
damages which shall be the sole remedy of Seller for such breach, and this
Agreement shall be null and void and neither party shall have any further
obligation to the other hereunder.
(f) In the event that the Seller fails to perform any of the terms
and conditions of this Agreement, Buyer may choose, after not less than ten (10)
days notice by Buyer to Seller (which notice sets forth said choice), to: (i)
have the Deposit plus accrued interest, if any, disbursed to Buyer by Escrow
Agent pursuant to the terms and conditions contained in subparagraph 2.02(g) of
this Agreement and Seller shall not be further obligated to Buyer, or (ii) seek
specific performance by Seller of its obligations in this Agreement. If Buyer
seeks specific performance, the Deposit plus any accrued interest shall not be
distributed by the Escrow Agent until either: (i) specific performance is
granted by a court or other body of competent legal jurisdiction and a Closing
occurs, at which time Escrow Agent shall disburse the Deposit and accrued
interest pursuant to the terms and conditions of subparagraph 2.02(d) of this
Agreement, or (ii) specific performance is denied by a court or other body of
competent legal jurisdiction, at which time the Escrow Agent shall disburse the
Deposit and accrued interest, if any, pursuant to the terms and conditions in
subparagraph 2.02(g) of this Agreement and Seller shall not be further obligated
to Buyer. Upon Buyer's election of specific performance as provided above, all
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other rights and remedies available at law or in equity for Seller's breach are
hereby waived by Buyer.
(g) In the event the Closing fails to take place for any other
reason, then, after not less than ten (10) days notice by Buyer to Seller, the
Deposit plus accrued interest, if any, shall be paid to Buyer by Escrow Agent
and retained by Buyer, and Seller shall not be further obligated to Buyer.
(h) The balance of the Purchase Price, in the amount of FOUR HUNDRED
THIRTY-NINE THOUSAND THREE HUNDRED SEVENTY-FIVE and 00/100 DOLLARS
($439,375.00), subject to adjustments at Closing (the "Closing Portion"), shall
be paid by wire transfer of immediately available funds at Closing to Seller, or
as Seller otherwise directs.
ARTICLE 3
CONDITIONS PRECEDENT TO CLOSE
The obligation of the parties to each other and to perform their
respective obligations hereunder shall be subject to the following being
completed within the applicable stated time periods:
3.01 Title.
(a) Title to the Property may be conveyed subject to the Reciprocal
Easement Agreement dated November 7, 2003, as amended on July 12, 2004, attached
hereto as Exhibit "C", the items listed on Exhibit "D" attached hereto, which
include the Subdivision Plan made for Pizza Hut dated June 18, 2003, filed with
the Washington County Clerk's Office and the Temporary Easement for Work Area
and Grading granted to the New York State Department of Transportation, current
and future ad valorem property taxes, existing utility easements serving the
property, restrictions, easements and covenants of record, provided the same do
not prohibit the current use of the Property, all present and future laws,
ordinances, codes, orders, regulations (including, without limitation, zoning,
building and environmental laws, ordinances, codes, restrictions and
regulations) of all federal, state, municipal or other governmental departments,
affecting the Property and the use thereof, party wall agreements, if any,
provided said agreements do not materially and adversely affect the current use
of the Property, any state of facts a physical inspection of the Property would
disclose, the standard print exceptions and exclusions normally set forth in an
owner's title insurance policy, any facts which a current, accurate survey may
show, provided same do not render title to the Property unmarketable and other
matters which are waived by Buyer in the manner set forth herein (collectively,
the "Permitted Encumbrances"). Buyer shall have a period of twenty-one (21) days
from the Date of this Agreement (the "Due Diligence Expiration Date") within
which to examine the title to the Property and to give notice to Seller of any
title objections which Buyer may have. If Buyer fails to give any notice of
objections to Seller by such date, Buyer shall be deemed to have waived its
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right to object to any title exceptions or defects and shall take title subject
to all matters of record, and all matters which would be shown by a current
accurate survey of the Property. If Buyer does give Seller notice of objection
to any title or defects, Seller shall then have the right, but not the
obligation, for a period of ten (10) days after such notice, to cure or satisfy
such objection, or to agree to do so by the Closing (it being understood that,
for purposes of determining the Closing Date referred to in Section 4.02, the
condition as to title shall be deemed to be met upon such date as Seller agrees
to satisfy such objections). If the objection is not so satisfied, or agreed to
be so satisfied, by Seller within such ten (10) day period, then Purchaser shall
have the right to terminate this Agreement by notice to Seller within five (5)
days after the expiration of such ten (10) day period, in which event the
Deposit, plus accrued interest, if any, shall be returned to Buyer. If Buyer
fails to provide such notice of termination within the five (5) day period, such
right of termination shall be waived.
(b) If, on the Closing Date, Seller is unable to convey to Buyer
title to the Property subject only to those matters, facts and circumstances
that are permitted to exist or to encumber the Property pursuant to the
provisions of Section 3.01(a) of this Agreement, Seller shall be entitled, upon
written notice delivered to Buyer on or prior to the Closing Date, to reasonable
adjournments of the Closing one or more times for a period not to exceed sixty
(60) days in the aggregate to enable Seller to convey such title to the
Property. If Seller does not so elect to adjourn the Closing, or if at the
adjourned date Seller is unable to convey title subject to and in accordance
with the provisions of this Agreement, Buyer may terminate this agreement by
written notice to Seller delivered on or promptly after the date scheduled for
the Closing, in which event Escrow Agent shall repay to Buyer the Deposit
together with interest earned thereon, if any, subject to the provisions of
Section 2.02(g) hereof. This Agreement shall thereupon be deemed canceled and
become void and of no further effect, and neither party hereto shall have any
obligations of any nature to the other hereunder or by reason hereof, except
provisions that specifically survive such termination. If Seller elects to
adjourn the Closing as provided above, this Agreement shall remain in effect for
the period or periods of adjournment, in accordance with its terms. Seller shall
not be required to take or bring any action or proceeding or any other steps to
remove any defect in or objection to title or to fulfill any condition precedent
to Buyer's obligations under this Agreement or to expend any moneys therefore,
nor shall Buyer have any rights of action against Seller therefore, at law or in
equity.
3.02 Environmental.
(a) Buyer shall have until the Due Diligence Expiration Date to
satisfy itself regarding the environmental condition of the Property. Within
three (3) Business Days after the Date of this Agreement, Seller shall provide
Buyer with copies of certain environmental reports and other documentation
relating to the environmental condition of the Property (collectively, the
"Environmental Materials"), a schedule of which is attached hereto as Exhibit
"E". Buyer acknowledges that the Environmental Materials are being provided to
Buyer at Buyer's request solely for Buyer's informational purposes. Seller does
not represent or warrant the environmental condition of the Property or the
accuracy, scope or completeness of the Environmental Materials,
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nor does Seller represent or warrant the accuracy, scope or completeness of any
environmental testing or remediation of the Property undertaken by or on behalf
of Seller or any other person. Buyer agrees that the Environmental Materials
will be reviewed by an independent environmental consultant retained by Buyer
and that Buyer will rely solely upon its own environmental consultant to
evaluate the environmental condition of the Property.
(b) Buyer acknowledges that environmental contaminants have been
found in, on or about the Property, and that the Property has been and remains
subject to certain environmental testing, remediation and/or monitoring
activities. Buyer has been specifically advised that the Property is located
near the General Electric plant, and that General Electric Corporation maintains
groundwater monitoring xxxxx on the Property pursuant to an Access and
Indemnification Agreement dated September 6, 1996, a copy of which is included
in the Environmental Materials. The environmental condition of the General
Electric plant and the surrounding properties has been investigated by
governmental authorities and Buyer is advised to review the status of the
investigation with its environmental consultant.
(c) Buyer further acknowledges that the Property was included in the
Preliminary Site Assessment of the Upper Broadway Site, Ft. Xxxxxx, New York
(the "Upper Broadway Site Assessment"), prepared by Ecology and Environmental
Engineering, Inc. for the New York State Department of Environmental
Conservation ("NYDEC"). The purpose of the Upper Broadway Site Assessment was to
investigate whether certain environmental contaminants, including volatile
organic compounds ("VOC's") and polychlorinated biphenyls ("PCB's"), were
present at or in the area of the Property. PCB's were found above their
screening criteria in two (2) test pit subsurface soil samples drawn from the
Property. In response to the Upper Broadway Site Assessment, Seller retained
Xxxxxxx Xxxxxx, Inc. to prepare an environmental work plan for the removal and
disposal of the PCB's identified in the Upper Broadway Site Assessment. Upon
completion of the PCB remediation identified in the environmental work plan,
Seller obtained a "no further concerns" letter from the NYDEC on March 9, 2005.
Subsequent to the issuance of the "no further concerns" letter, additional PCB
testing was undertaken at the Property. As a result of the additional PCB
testing, Seller has determined to undertake additional PCB remediation at the
Property (the "Additional PCB Remediation"). The Additional PCB Remediation is
more fully described in the environmental remediation work plan dated March 28,
2006 prepared by Xxxxxxx Xxxxxx, Inc. (the "Environmental Work Plan"), a copy of
which is attached hereto as Exhibit "F".
(d) Buyer shall have until the Due Diligence Expiration Date to
satisfy itself regarding the environmental condition of the Property and the
Environmental Work Plan. In the event Buyer determines that the either the
environmental condition of the Property or the Environmental Work Plan is
unsatisfactory, Buyer may give notice of termination to Seller, by no later than
the Due Diligence Expiration Date, whereupon this Agreement shall be terminated,
the Deposit plus any accrued interest shall be returned to Buyer and neither
party shall be further obligated to the other under the Agreement. If Buyer
fails to provide such notice of termination on or prior to the Due Diligence
Expiration Date, such right of termination shall be deemed waived. In the event
that Buyer elects to terminate this Agreement pursuant to the provisions of
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Section 3.01(a) above or this Section 3.02(d), Buyer shall promptly return to
Seller Buyer's copies of the Environmental Materials and the Environmental Work
Plan.
(e) In the event that Buyer fails to exercise its rights to
terminate this Agreement in accordance with the provisions of either Section
3.01(a) or 3.02(d) above, Seller shall submit the Environmental Work Plan to the
NYDEC for its approval. In the event that the NYDEC fails to approve the
Environmental Work Plan within thirty (30) days after the Due Diligence
Expiration Date (or, at Seller's option, after an additional thirty (30) day
period), either party may upon written notice to the other party terminate this
Agreement, in which event the Deposit plus any accrued interest shall be
returned to Buyer and neither party shall have any further rights or obligations
hereunder. In the event that the NYDEC approves the Environmental Work Plan as
provided in the preceding sentence, Seller, upon receipt of the NYDEC approval,
shall obtain final bids for the Additional PCB Remediation. Upon Seller's
receipt of a satisfactory final bid for the Additional PCB Remediation, Seller
shall cause the Additional PCB Remediation to be undertaken in accordance with
the approved Environmental Work Plan. Upon completion of the Additional PCB
Remediation, Seller shall obtain a closure report (the "Closure Report") from
Seller's environmental consultant certifying that the Additional PCB Remediation
has been completed in accordance with the approved Environmental Work Plan.
Seller shall deliver a copy of the Closure Report to Buyer promptly after
receipt by Seller. Seller shall also cause the Closure Report to be submitted to
the NYDEC and request that the NYDEC approve the Closure Report and/or issue an
amendment to or substitution of the existing "no further concerns letter" (the
"NYDEC Closure Letter"). Seller shall deliver a copy of the NYDEC Closure Letter
to Buyer promptly after receipt by Seller. Provided that Seller delivers the
NYDEC Closure Letter to Buyer in accordance with the provisions of this Section
3.02(e), Seller and its officers, directors and shareholders, shall be released
by Buyer and its officers, directors and shareholders, from any and all manner
of claims, demands, causes of action, lawsuits, debts and obligations, in law or
in equity, arising out of or in any way relating to the environmental condition
of the Property as of the Closing Date.
ARTICLE 4
CLOSING AND ESCROW
4.01 Escrow Instructions.
(a) This Agreement, together with any supplemental escrow
instructions reasonably required by Escrow Agent, shall serve as the
instructions to Escrow Agent for disposition of the Deposit plus accrued
interest, if any, and for consummation of the purchase and sale contemplated
hereby. The validity of this Agreement as between Seller and Buyer shall not be
affected by whether or not the Escrow Agent has signed this Agreement. However,
in the event Escrow Agent fails to timely execute and deliver counterparts of
this Agreement and any supplemental instructions, either Buyer or Seller may
substitute as Escrow Agent hereunder any other title or escrow company
reasonably acceptable to the other which is willing to so execute such
additional and supplemental escrow instructions as may be appropriate to enable
the Escrow
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Agent to comply with the terms of this Agreement; provided, however, that in the
event of any conflict between the provisions of this Agreement and any
supplemental escrow instructions, the terms of this Agreement shall control,
unless the parties hereto specifically state that the same is meant to modify
this Agreement.
(b) Seller and Buyer agree to sign any supplemental escrow
instructions reasonably required by Escrow Agent, and all forms required in
connection with Escrow Agent's holding and investing the Deposit, such as IRS
and bank account forms and reports.
(c) (1) In any instance set forth in subsections 2.02(d) through
2.02(g) hereof, providing for the payment of the Deposit and interest, if any,
by Escrow Agent to either Buyer or Seller, the Escrow Agent shall not deliver
the Deposit and interest until and unless each of the following has occurred:
(i) Escrow Agent has received a written demand for payment from Buyer ("Buyer's
Demand") or Seller ("Seller's Demand") stating the paragraph of this Agreement
pursuant to which such party is demanding payment and the facts and
circumstances surrounding any stated default or termination justifying such
payment, (ii) the Escrow Agent has sent a copy of Seller's Demand or Buyer's
Demand to the other party, as the case may be, (iii) the other party has had,
not less than ten (10) days from receipt of a copy of such demand, to object to
the delivery of the Deposit and interest by sending written notice (the "Notice
of Objection") of any objection to the Escrow Agent, and (iv) the Escrow Agent
has not received a Notice of Objection from the other party within such ten (10)
day period.
(2) In the event Escrow Agent shall receive a Notice of
Objection within the prescribed time period, Escrow Agent shall continue to hold
the Deposit and interest until: (i) the Escrow Agent receives written notice
from Seller and Buyer directing the disbursement of the Deposit and interest, in
which case the Escrow Agent shall then disburse the Deposit and interest, if
any, in accordance with such direction, or (ii) in the event of litigation
between Seller and Buyer, the Escrow Agent shall deliver the Deposit and
interest, if any, to the clerk of the court in which said litigation is pending,
or (iii) the Escrow Agent takes such affirmative steps as the Escrow Agent may,
at the Escrow Agent's option, elect in order to terminate the Escrow Agent's
duties including, but not limited to, depositing the Deposit in any court within
the judicial jurisdiction where the Property is located and bringing an action
for interpleader, the costs thereof to be borne by whichever of Seller or Buyer
is the losing party.
4.02 Closing Date. The closing or settlement of the transaction
contemplated hereby (the "Closing") shall be conducted by mail through the
Escrow Agent or at such offices and in such manner as the parties may mutually
agree. The Closing shall be held not later than seven (7) days after Buyer's
receipt of a copy of the NYDEC Closure Letter as provided in Section 3.02 (e)
above (the "Closing Date"). Time shall be of the essence with respect to a
Closing by the Buyer on the Outside Date. The date on which the Closing actually
occurs is referred to herein as the Closing Date.
4.03 Fees. Buyer shall pay for all title search and examination fees, the
premium for an owner's title policy, the cost of Buyer's environmental
consultants and all recording fees and any
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other Buyer due diligence items. Seller shall pay for all transfer taxes. Each
party shall pay its own legal costs related to this transaction. Any escrow fees
shall be divided equally between the parties.
4.04 Apportionments.
(a) At the Closing, the following items shall be apportioned between
the parties as of 11:59 PM on the day preceding the Closing Date. Any errors in
the apportionments pursuant to this Section 4.04 shall be corrected by
appropriate re-adjustment between Seller and Buyer post-Closing, provided that
notice of any such error, with supporting calculations, shall be given by Buyer
to Seller or by Seller to Buyer, as the case may be, no later than ninety (90)
days after the Closing, if ascertainable within such period, it being understood
and agreed that if any such items or errors are not ascertainable at the Closing
or within ninety (90) days thereafter, the apportionment shall be made
subsequent to the Closing as soon as practicable after the charge or error is
determined. The items to be apportioned are:
(b) Real estate taxes, school taxes, sewer charges, and vault
charges, if any, and any and all other municipal or governmental assessments of
any and every nature levied or imposed upon the Property with respect to the
current fiscal year of the applicable taxing authority in which the Closing Date
occurs (the "Current Tax Year"), on a per diem basis based upon the number of
days in the Current Tax Year prior to the Closing Date (which shall be allocated
to Seller) and the number of days in the Current Tax Year on and after the
Closing Date (which shall be allocated to Buyer). If the Closing shall occur
before the tax rate for the Current Tax Year is fixed, the apportionment of real
estate taxes shall be upon the basis of the tax rate for the next preceding
fiscal period applied to the latest assessed valuation. Promptly after the new
tax rate is fixed for the fiscal period in which the Closing takes place, the
apportionment of real estate taxes shall be recomputed. Upon the Closing Date
and subject to the adjustment provided above, Buyer shall be responsible for
real estate taxes and assessments levied or imposed upon the Property payable
with respect to the Current Tax Year and all periods after the Current Tax Year.
In no event shall Seller be charged with or be responsible for any increase in
the real estate taxes or assessments levied or imposed upon the Property
resulting from the transfer of the Property herein contemplated or from any
improvements made at any time or for any reason. In the event that any
assessments levied or imposed upon the Property are payable in installments, the
installment for the Current Tax Year shall be prorated in the manner set forth
above and Buyer hereby assumes the obligation to pay any such installments due
on and after the Closing Date.
(c) Buyer acknowledges that the Property is subject to a pending
real estate tax appeal. If the tax appeal results in a reduced real estate
assessment for the fiscal year in which Closing occurs, the real estate taxes
shall be apportioned based upon the reduced assessment, and Buyer shall
reimburse Seller at Closing for its proportionate share of the costs of the tax
appeal, based upon the fiscal year in which the Closing occurs. In the event
that the tax assessment is reduced for any fiscal year prior to the fiscal year
in which the Closing occurs, Seller shall be entitled to receive the entire tax
refund for such prior fiscal year.
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ARTICLE 5
DOCUMENTS TO BE DELIVERED AT CLOSING
5.01 Documents to be Delivered by Seller. Seller shall deliver the
following documents to Escrow Agent at or before Closing, as the case may be, as
a condition of Buyer's obligation to complete Closing hereunder:
(a) Deed. A Bargain and Sale Deed (the "Deed"), in proper form
for recording in the State of New York, duly executed and acknowledged so as to
convey to Buyer fee simple title to the Property, subject to the Permitted
Encumbrances.
(b) FIRPTA Certificate. An executed FIRPTA Certificate.
(c) Form l099S. A Form 1099s with respect to this transaction.
(d) Transfer Forms. A Seller executed Combined Real Estate
Transfer Tax Return and Credit Line Mortgage Certificate (TP-584) (the "Transfer
Tax Form") and a Seller executed Real Property Transfer Report (RP-5217) (the
"Transfer Report").
(e) Customary Documents. Such customary documents as may be
reasonably requested by the title company for execution by Seller in connection
with the Closing.
5.02 Documents to be Delivered by Buyer. Buyer shall deliver to Escrow
Agent (or title company) at Closing: (i) a Buyer executed Transfer Tax Form and
Transfer Report, and (ii) such documents as may be reasonably requested by the
title company for execution by Buyer in connection with the Closing.
5.03 Payments and Release of Documents. At Closing, Buyer shall wire
transfer to Escrow Agent the Closing Portion. Upon receipt of the Closing
Portion and escrow instructions from both Buyer and Seller, Escrow Agent (or
title company) shall: (a) disburse the Closing Portion in such manner as shall
be directed by Seller, (b) record the Deed and such other recordable documents
as may be delivered in connection with the Closing, and (c) deliver duplicate
originals or copies (as applicable) of the documents listed in Sections 5.01 and
5.02 (the "Closing Documents") in such manner as is jointly instructed by Seller
and Buyer.
ARTICLE 6
SELLER'S REPRESENTATIONS
Seller warrants, represents and/or covenants to Buyer as follows, all of
which warranties, representations and/or covenants are and shall be true and
correct as of the Date of this Agreement and shall be true and correct as of the
Closing:
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(a) Seller is a corporation duly organized and existing under and by
virtue of the laws of the State of Delaware and, if required, is qualified or
will be qualified at Closing to do business in the State of New York, and has
full power and authority to enter into this Agreement and to perform its
obligations hereunder. The parties executing this Agreement have full power and
authority to execute this Agreement and thereby bind Seller.
(b) Seller is not a foreign person or entity pursuant to the Foreign
Investment in Real Property Tax Act, or the Tax Reform Act of 1984, and Buyer is
not obligated to withhold portions of the Purchase Price for the benefit of the
Internal Revenue Service. This provision will survive the Closing.
ARTICLE 7
MISCELLANEOUS
7.01 Brokers. Seller and Buyer each warrant and represent to the other
that the only broker they have dealt with The Xxxxxx Xxxx Group (the "Broker").
Seller shall pay the commission to the Broker. In the event that any claim is
asserted by any other person, firm or corporation, whether broker or otherwise
claiming a commission and/or finder's fee with respect to this transaction,
Buyer and Seller shall indemnify and save harmless each other from all loss,
costs or expenses caused by any such claim. This provision will survive the
Closing.
7.02 Eminent Domain. If, after the Date of this Agreement and prior to
Closing, Seller receives notice of the commencement or threatened commencement
of eminent domain proceedings against the Property or any portion thereof,
Seller shall immediately give notice thereof to Buyer. Buyer shall elect within
thirty (30) days, after receipt of notice by Seller, by written notice to Seller
to either: (i) terminate this Agreement, in which event the Deposit plus any
accrued interest shall be refunded to Buyer, or (ii) close the transaction
contemplated hereby in accordance with its terms but subject to such
proceedings, in which event the Purchase Price shall not be reduced but Seller
shall assign to Buyer Seller's rights in any condemnation award or proceeds. If
Buyer does not give notice timely, Buyer shall be deemed to have elected to
close the transaction contemplated hereby in accordance with clause (ii) of this
Section 7.02.
7.03 Damage or Destruction. If any material part of the improvements on
the Property is destroyed or materially damaged (excluding natural wear and
tear) prior to Closing, Seller shall give notice to Buyer of such damage or
destruction. Buyer shall elect within thirty (30) days of receipt of such
notice, by notice to Seller: (i) to terminate this Contract, in which event the
Deposit plus any accrued interest shall be refunded to Buyer, or (ii) to close
the transaction contemplated hereby, without any abatement of or reduction in
the Purchase Price. In the event Buyer does not make such an election within the
thirty (30) day time period, Buyer will be deemed to have elected (ii) above.
Buyer acknowledges that Seller does not maintain fire or casualty insurance
policies covering the Property. Buyer may maintain such insurance coverage at
its own cost and expense, insuring Buyer's equitable interest in the Property.
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7.04 Notices. All notices, demands or other communications which are
required or permitted to be given hereunder shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by confirmed legible telecopy transmission, or by
Federal Express or similar nationally recognized courier service which obtains
receipts, addressed to the respective parties as follows:
If to Seller:
DVL, Inc.
00 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxxx & Feliu, LLP
000 Xxxx 00 Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer:
000 Xxxxxxxx Associates, LLC
00 Xxxxx Xxxx Xxxxxx
Xx. Xxxxxx, Xxx Xxxx 00000
Attention: S. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bartlett, Pontiff, Xxxxxxx & Xxxxxx, P.C.
Xxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as either party may from time to time designate by
notice to the other given in accordance with this section 7.04. Notice shall be
deemed to have been given (i) upon
11
the receipted delivery thereof in the case of personal delivery, (ii) one
Business Day after deposit with the courier service in the case thereof, or
(iii) upon confirmed legible telecopy transmission by 5:00 p.m. (Eastern Time)
on a Business Day in the case thereof. The time period in which a response to
any notice must be given or any action taken with respect thereto shall commence
to run from the date the notice is deemed received by the addressee (as
evidenced by the return receipt, or confirmation of the telecopy transmission).
7.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and approved
assigns. The rights of Buyer under this Agreement are not assignable without the
prior written approval of Seller. If approved by Seller, the assignment shall be
in writing, and the assignee shall assume and agree to observe and perform all
of the obligations and duties of Buyer under this Agreement; provided, however,
that Buyer shall remain fully and primarily liable hereunder. No assignment
shall be effective until Seller has received a notice thereof including the
assignee's address and true and complete copies (certified as such by Buyer and
the assignee) of any and all documents involved in the assignment. After receipt
of such notice, Seller shall deal in all respects with the assignee as "Buyer"
under this Agreement. Notwithstanding anything to the contrary contained in this
Section 7.05, Buyer may assign all of its rights and delegate all of its
obligations hereunder to any Affiliate (as hereinafter defined) of Buyer. In
connection with any assignment permitted or consented to hereunder, such
assignee shall assume in writing all of the assignor's obligations under this
Agreement in form and substance satisfactory to Seller, provided, that, the
Buyer originally named herein shall not be released from all its obligations
hereunder. Any other purported or attempted assignment or delegation without
obtaining Seller's prior written consent or not otherwise permitted hereunder
shall be void and of no effect. "Affiliate" means any entity in which Buyer
directly or indirectly owns more than fifty-one percent (51%) of the beneficial
interest and has control of such entity; "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of the entity in question, whether through the ownership
of voting stock, by contract or otherwise. No consent given by Seller to any
transfer or assignment of Buyer's rights or obligations hereunder shall be
construed as a consent to any other transfer or assignment of Buyer's rights or
obligations hereunder.
7.06 Exculpation. This Agreement is executed by the authorized
representatives of Seller and Buyer, not individually, but solely on the behalf
of Seller and Buyer, respectively. All persons dealing with Seller or Buyer must
look solely to the assets of Seller or Buyer, as the case may be, for the
enforcement of any claim against it. The obligations hereunder are not binding
upon, nor shall resort be had to, the private property of any of the partners,
directors, officers, advisors, employees or agents of either Seller or Buyer.
7.07 Interpretation. This Agreement shall be governed by the laws of the
State of New York. The captions of articles, sections and subsections used in
this Agreement are for convenience only. In the event any portion of this
Agreement shall be declared by any court of competent jurisdiction to be
invalid, illegal or unenforceable, such portion shall be deemed severed from
this Agreement, and the remaining parts hereof shall remain in full force and
effect,
12
as fully as though such invalid, illegal or unenforceable portion had never been
part of this Agreement. The term "Business Day" shall mean Monday through
Friday, excluding holidays recognized by the state government of the State in
which the Property is located. If any time period under this Agreement ends on a
day other than a Business Day, then the time period shall be extended until the
next Business Day.
7.08 Additional Documents. From time to time prior to and after the
Closing, each party shall execute and deliver such instruments of transfer and
other documents as may be reasonably requested by the other party to carry out
the purpose and intent of this Agreement. Any amendments to this Agreement must
be in writing and signed by all parties hereto. Any waivers provided for in this
Agreement must be made in writing by the party to be bound thereby.
7.09 No Recording. This Agreement shall not be lodged for recording in any
place or office of public record unless Seller or Buyer is in default under this
Agreement. If Buyer records this Agreement, Seller, at its option, may cancel
this Agreement and retain the deposit as liquidated damages; provided, however,
the filing or recording of this Agreement as part of any proceedings instituted
in any court of proper jurisdiction to enforce the provisions of this Agreement
shall not be deemed a breach of this Section 7.09.
7.10 Property Sold "As Is".
(A) Purchase. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, BUYER
IS EXPRESSLY PURCHASING THE PROPERTY IN ITS EXISTING CONDITION "AS IS, WHERE IS,
AND WITH ALL FAULTS" WITH RESPECT TO ALL FACTS, CIRCUMSTANCES, CONDITIONS AND
DEFECTS, AND, EXCEPT AS IS EXPRESSLY SET FORTH IN THIS AGREEMENT TO THE
CONTRARY, SELLER HAS NO OBLIGATION TO DETERMINE OR CORRECT ANY SUCH FACTS,
CIRCUMSTANCES, CONDITIONS OR DEFECTS OR TO COMPENSATE BUYER FOR SAME
(B) CERTAIN WAIVERS AND DISCLAIMERS. BUYER AGREES THAT EXCEPT AS IS
EXPRESSLY SET FORTH IN THIS AGREEMENT TO THE CONTRARY, BUYER ACKNOWLEDGES THAT
IT IS NOT RELYING UPON ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY SELLER,
OR ANY OF SELLER'S PARTNERS, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR
AGENTS (COLLECTIVELY, THE "SELLER RELATED PARTIES") WITH RESPECT TO THE
PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT.
(C) BUYER SHALL RELY SOLELY UPON BUYER'S OWN KNOWLEDGE OF THE
PROPERTY BASED ON ITS INVESTIGATION AND INSPECTION OF THE PROPERTY IN
DETERMINING THE PROPERTY'S PHYSICAL CONDITION. BUYER RELEASES SELLER, THE SELLER
RELATED PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY
AND ALL
13
CLAIMS WHICH BUYER OR ANY PARTY RELATED TO OR AFFILIATED WITH BUYER (EACH, A
"BUYER RELATED PARTY") HAS OR MAY HAVE ARISING FROM OR RELATED TO ANY MATTER OR
THING RELATED TO OR IN CONNECTION WITH THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE DOCUMENTS AND INFORMATION REFERRED TO HEREIN, ANY CONSTRUCTION
DEFECTS, ERRORS OR OMISSIONS IN THE DESIGN OR CONSTRUCTION AND ANY ENVIRONMENTAL
CONDITIONS, AND NEITHER BUYER NOR ANY BUYER RELATED PARTY SHALL LOOK TO SELLER,
THE SELLER RELATED PARTIES OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS IN
CONNECTION WITH THE FOREGOING FOR ANY REDRESS OR RELIEF; PROVIDED, HOWEVER, THAT
THE FOREGOING RELEASE SHALL NOT EXCULPATE SELLER FROM ANY WILLFUL AND
INTENTIONAL MISREPRESENTATION OF ANY MATERIAL FACT. EXCEPT AS SET FORTH IN THE
IMMEDIATELY PRECEDING PROVISO, SUCH RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT
ACCORDING TO EACH OF ITS EXPRESS TERMS AND PROVISIONS, INCLUDING THOSE RELATING
TO UNKNOWN AND UNSUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THE PROVISIONS
OF THIS SECTION 7.10 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE
CLOSING DATE AND SHALL NOT BE DEEMED TO HAVE MERGED INTO ANY OF THE DOCUMENTS
EXECUTED OR DELIVERED AT THE CLOSING. TO THE EXTENT REQUIRED TO BE OPERATIVE,
THE DISCLAIMERS AND WARRANTIES CONTAINED HEREIN ARE "CONSPICUOUS" DISCLAIMERS
FOR PURPOSES OF ANY APPLICABLE LAW, RULE, REGULATION OR ORDER.
7.11 Non-Survival of Provisions. Except as otherwise expressly provided
herein, the respective warranties, representations, covenants, agreements,
obligations and undertakings of Seller and Buyer shall not survive the Closing
and the delivery of the Deed.
7.12 Publicity. Buyer and Seller agree that no press release or other
public disclosure shall be made by it or any of its agents concerning this
transaction without the prior written consent of the other party. This provision
shall not prevent governmentally required or court ordered disclosures.
7.13 Entire Agreement. This Agreement, including the Exhibits annexed
hereto, represents the entire agreement between the parties with respect to the
Property, and may not be modified or terminated except by agreement, in writing,
signed by the parties hereto. There are no representations, agreements,
arrangements, or understandings, oral or written, relating to the subject matter
which are not fully expressed herein.
7.14 Counterpart Execution. This Agreement may be executed in separate
counterparts. It shall be fully executed when Seller and Buyer have signed at
least one counterpart even though no one counterpart contains the signature of
both parties.
7.15 Offer, Acceptance and Agreement. This document, as signed in
counterpart by Buyer, shall constitute an offer by Buyer. This offer shall
remain open for acceptance by Seller
14
until three (3) Business Days after the date upon which said signed counterpart
is received by Seller. The offer shall be deemed accepted when a counterpart has
been signed by Seller, and a confirmed telecopy transmission of the signature
page signed by Seller, has been transmitted to Buyer's attorney. As used herein,
the phrase "Date of this Agreement" shall mean the date on which said acceptance
by Seller is affected. Promptly after said acceptance, Seller shall forward to
Purchaser a complete counterpart of this Agreement, signed by Seller, and shall
forward a counterpart to Escrow Agent for execution by Escrow Agent.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale as of the day and year indicated below their signature.
SELLER:
DVL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Date signed by Seller:
4/27/06
--------------------------------
BUYER:
000 XXXXXXXX ASSOCIATES, LLC
By: /s/ S. Xxxx Xxxxxx
----------------------------
Name: S. Xxxx Xxxxxx
Title: Member
Date signed by Buyer:
4/25/06
--------------------------------
16
The undersigned Escrow Agent agrees to act as Escrow Agent and receive,
hold, disburse and distribute the Deposit and the Closing Documents in
accordance with this Agreement of Sale.
ESCROW AGENT:
XXXXXXXXXX & FELIU, LLP
By: Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
Date signed by Escrow Agent:
4/27/06
--------------------------------
17
EXHIBIT A
LEGAL DESCRIPTION
(To be Attached)
18
EXHIBIT "A"
ALL THAT CERTAIN plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the town of Fort
Xxxxxx, County of Washington and State of New York. bounded and described as
follows:
BEGINNING at an iron pipe in the ground on the easterly line of U.S Route 4
(Upper Broadway) at the southwest corner of lands of Franchise Realty Interstate
Corp. said point of beginning being also 325.01 feet south of the south line of
Orsola Avenue as measured along the easterly line of U.S. Route 4 and runs
thence south 76 degrees 49 minutes east along the south line of Franchise Realty
Interstate Corp. a distance of 200.00 feet;
THENCE north 12 degree 37 minutes east along the east line of said lands a
distance of 200.00 feet to the southerly bounds of a lot sub-division;
THENCE south 76 degrees 49 minutes east along said south 1ine a distance of
293.80 feet;
THENCE south 21 degrees 20 minutes west a distance of 18.44 feet;
THENCE south 68 degrees 48 minutes east a distance of 125.50 feet;
THENCE south 52 degrees 30 seconds east across the southerly bounds of Xxxxxx
Avenue, a distance of 52.33 feet;
THENCE south 68 degrees 56 minutes east a distance of 125.00 feet to the
westerly line of land of School District 9;
THENCE south 21 degrees 06 minutes 30 seconds west along said westerly line a
distance of 94.64 feet to a stone monument;
THENCE south 21 degrees 19 minutes west continuing along said westerly line a
distance of 443.26 feet to the southerly line of lands of the Grantor herein;
THENCE north 83 degrees 44 minutes west along said southerly line a distance of
105.65 feet to the southeast corner of lands of Agway Inc.;
Continued.......
For conveyancing only, if intended to be conveyed: Together with all rights,
title and interest of, in and to any streets and roads abutting the above
described premises, to the center line thereof.
EXHIBIT "A"
THENCE north 12 degrees 37 minutes 30 seconds east along the east line of Agway
Inc. lands a distance of 186.65 feet to the northeast corner thereof;
THENCE north 76 degrees 49 minutes west along the northerly line of lands of
Agway Inc. a distance of 600.00 feet to the easterly line of U.S. Route 4 (Upper
Broadway);
THENCE north 12 degrees 37 minutes east along the easterly line of U.S. Route 4
a distance of 233.47 feet to the point and place of BEGINNING. Containing 6.8
acres more or less of land, all as shown on a survey and map prepared by Xxxxxxx
Xxxxxxx P.C.
Excepting however a strip of land 1.84 feet deep at the north end and 2.22 feet
at the south end and 233.02 feet long, which has been determined to be within
the Waterford to Whitehall Turnpike.
BEING the same premises conveyed to Fort Xxxxxx Associates from the Grand Union
Company by deed dated 3/30/83 and recorded 4/6/83 in Book 494 Page 101.
PREMISES known as Xxxxx 0, Xxxx Xxxxxx, Xxx Xxxx and designated as Section
163.10 Block 1 Lot 46.3 as shown on the Washington County Land and Tax Map.
Continued
For conveyancing only, if intended to be conveyed: Together with all rights,
title and interest of, in and to any streets and roads abutting the above
described premises, to the center line thereof.
Less and Except:
EXHIBIT "A"
All that certain piece or parcel of land situate, lying and being in the
Town of Fort Xxxxxx, County of Washington and the State of New York, more
particularly bounded and described as follows: BEGINNING at a point in the
easterly bounds of Upper Broadway at the southwest corner of the lands conveyed
to Franchise Realty Interstate Corporation by deed dated August 13, 1976 and
recorded in book 455 of deeds at page 767; running from thence South 75 degrees,
25 minutes and 21 seconds East, along the southerly bounds thereof, a distance
of 197.78 feet to the southeast corner thereof; thence running through the lands
of the grantor herein, the following three courses and distances: (1) South 75
degrees, 25 minutes and 21 seconds East, a distance of 31.22 feet; (2) South 13
degrees, 59 minutes and 17 seconds West, a distance of 172.04 feet; (3) North 75
degrees, 24 minutes and 46 seconds West, a distance of 229.00 feet to the
easterly bounds of Upper Broadway; thence running along the same, North 13
degrees, 59 minutes and 17 seconds East, a distance of 172.00 feet to the point
and place of beginning, containing 0.90 acres of land to be the same more or
less.
Bearings given in the above description refer to magnetic North.
EXHIBIT B
WIRE TRANSFER INSTRUCTIONS
United States Trust Company of New York
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA Routing No. 000-000-000
Xxxxxxxxxx & Xxxxx, LLP Attorney Trust Account
Account No. 0000000
EXHIBIT C
RECIPROCAL EASEMENT AGREEMENT AND AMENDMENT THERETO
(Attached)
EXHIBIT "C"
RECIPROCAL EASEMENT AND RESTRICTIVE COVENANT AGREEMENT
THIS RECIPROCAL EASEMENT AND RESTRICTIVE COVENANT AGREEMENT (this
"Agreement") is made as of the 7th day of November, 2003 by and between DVL,
INC., a New York Corporation, having an address at 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("DVL"), and PIZZAGATES, INC., a New York
Corporation, having an address at 0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxxx 0000-0,
Xxxxxxx, Xxxxxx 00000 ("Pizzagates").
WHEREAS, DVL is the owner of certain real property and improvements
located thereon (the "Main Parcel"), situated in the town of Ft. Xxxxxx, County
of Washington, State of New York, consisting of approximately 6.84 acres, as
more particularly shown as Combined Lots A and B on a map entitled "Map of a
Proposed Subdivision Made for Pizza Hut", dated June 18, 2003, last revised
October 3, 2003, prepared by Van Dusen & Steves, Land Surveyors and intended to
be filed in the Washington County Clerk's Office concurrently with the filing of
this Agreement (hereinafter the "Map"), and
WHEREAS, DVL, is conveying to Pizzagates concurrently with the execution
of this Agreement, certain property consisting of approximately .90 acres and
shown as Lot A on the Map (the "Out Parcel") from the Main Parcel. The remainder
of the Main Parcel after the subdivision is hereinafter referred to as the "DVL
Parcel" and is shown as a parcel consisting of approximately 5.94 acres and
shown as Lot B on the Map. Pizzagates intends to construct, pursuant to the
terms of a certain Agreement of Sale between DVL and Pizzagates dated March 4,
2003 (the "Agreement of Sale") certain improvements on the Out Parcel. The Out
Parcel and the DVL Parcel are hereinafter collectively referred to as the
"Parcels", and each individually as a "Parcel", and
WHEREAS, DVL and Pizzagates recognize that it is for the benefit of both
Parcels that they agree and cooperate with respect to the operation and
maintenance of their Parcels. DVL and Pizzagates therefore intend herein to
grant to each other certain easements for pedestrian and vehicular ingress and
egress over the common driveway for access and delivery to each of the Parcels
and easements for utilities servicing their Parcels. DVL and Pizzagates also
intend herein to provide for certain obligations and restrictions with respect
to the operation and maintenance of their respective Parcels and the facilities
to be constructed thereon. Such easements, obligations and restrictions shall
run to the benefit of, and bind the respective Parcels and the owners from
time to time thereof. The terms DVL and Pizzagates shall be deemed to refer to
such parties and their respective heirs, successors, grantees and assigns and
any net lessee of any Parcel or part thereof (individually the "Owner" or
collectively the "Owners).
NOW, THEREFORE, by mutual agreement and other good and valuable
consideration, the receipt and sufficiency which are hereby acknowledged, the
parties agree as follows:
ARTICLE 1 - GRANTS OF EASEMENTS
A. The Owner of the DVL Parcel hereby grants and conveys, for the benefit
of the Out Parcel, a non-exclusive perpetual easement and right to use a portion
of Lot B on said Map being a 61.13' by 229' strip bordering U.S. Route 4 (Upper
Broadway) (hereinafter the "Driveway Area") for the purposes of ingress, egress,
passage and delivery by vehicles and pedestrians. Furthermore, the Owner of the
Out Parcel shall have the right to construct, install, replace and maintain in
the Driveway Area the following items in accordance with the site plan approved
by the Town of Fort Xxxxxx Planning Board: (i) signs; (ii) lights; (iii) green
area islands; and (iv) driveway.
B. The Owner of the Out Parcel hereby grants and conveys, for the benefit
of the DVL Parcel, a non-exclusive perpetual easement and right, to repair and
replace and use any utility lines including sewer, water, electric, phone and
cable (collectively, the "Utility Lines") located in and on the Out Parcel for
separately metered service for the DVL Parcel and to enter the Out Parcel to
repair and replace said Utility Lines. The Owner of the Out Parcel reserves the
right to relocate said lines on its Parcel in its sole discretion and at its own
cost and expense, provided that utility service to the DVL Parcel is not
interrupted except on a temporary basis with notice to the Owner of DVL Parcel
but in no event longer than twelve (12) hours.
C. The Easements granted hereby shall be for the benefit of, but not
restricted solely to, the Owner of the DVL Parcel and the Owner of the Out
Parcel and each such Owner may grant the benefit of such Easement to the tenants
and other occupants of the Parcels for the duration of such occupancy, and to
the customers, agents and business invitees thereof; but same is not intended
nor shall it be construed as creating any rights in or for the benefit of the
general public. Such Easement areas are reserved for said use for the term of
this Agreement.
D. The Easements granted by this Article I shall be subject to the
covenants, restrictions and maintenance language set forth below.
ARTICLE 2 - CONVENANTS AND RESTRICTIONS
The Parcels shall be subject to the following restrictions on use and
covenants which shall be binding on each Owner, and each of its tenants,
occupants, employees, agents and invitees:
A. No obstruction of the flow of traffic and delivery over the Driveway
Area shall be permitted that would be contrary to the purpose and intent of this
Agreement.
B. Any construction on either Parcel shall be conducted in a commercially
reasonable manner so as to limit interference with the Easements and not be
contrary to the purpose and intent of this Agreement.
C. No portion of the DVL Parcel shall be used for the sale of prepared
pizzas, other than frozen pizzas that shall be cooked offsite from the DVL
Parcel.
D. The Owner of the Out Parcel may develop the Out Parcel in the future
without the consent of the Owner of the DVL Parcel (after the initial
development of the Out Parcel as approved by DVL and set forth in the Agreement
of Sale and related documents). Notwithstanding anything to the contrary
contained herein, if such future development of the Out Parcel includes, without
limitation: (a) changes in the use of the Out Parcel from that of a sit-down
restaurant or fast food establishment (the "Use) (b) location, (c) increase in
the footprint or square footage of the building to be built on the Out Parcel,
(d) decrease of more than ten percent (10%) in the footprint or square footage
of the building to be built on the Out Parcel, (e) change in signage which is
not attached to said building, or (f) any changes to the height of the building
that will cause the building's height to exceed twenty-six (26) feet, the prior
written consent of the Owner of the DVL Parcel will be required, which consent
may be granted or denied in the sole and absolute discretion of the Owner of the
DVL Parcel. However, such written consent of the Owner of the DVL Parcel shall
not be required for a change in the Use (as set forth in a above), only, in the
event the Owner of the Out Parcel shall be prevented from constructing or
operating a "sit-down" restaurant or fast food establishment on the Out Parcel
by a settlement by Chicago Title
Insurance Company or a judgment of a court of competent jurisdiction, provided,
that said judgment is related directly to a suit or claim in connection with any
restrictive covenant applicable to the Out Parcel. This waiver of said written
consent requirement shall expire two (2) years after issuance of a certificate
of occupancy for a "sit-down" restaurant or fast food establishment on the Out
Parcel unless an action is commenced during said two-year period intending to
prohibit use of the Out Parcel as a "sit-down" restaurant or fast food
establishment.
E. The Owner of the DVL Parcel shall construct at its own expense a
228+/-'x 4' high cedar post and rail fence on the property line bordering the
north line of Agway (the adjacent property) when site work occurs on the Out
Parcel per the site plan approved by the Town of Fort Xxxxxx Planning Board.
F. The Owner of the Out Parcel shall relocate lights at its expense on to
the Driveway Area per the site plan approved by the Town of Fort Xxxxxx Planning
Board. Said lights shall be separately metered and the Owner of the Out Parcel
shall pay the cost for said electrical lighting.
ARTICLE 3 - MAINTENANCE
A. The Owner of the Out Parcel shall maintain, repair and/or replace those
items it places in the Driveway Area including the signs, lights, green area
islands and driveway for so long as the Owner of the Out Parcel uses the
Driveway Area to access the Out Parcel. All expenses associated with said
maintenance, repair and replacement shall be the responsibility of the Owner of
the Out Parcel except the Owner of the Out Parcel and the DVL Parcel shall share
evenly the cost of snow removal, cleaning, paving, striping and repair of the
driveway in the Driveway Area. The Owner of the DVL Parcel reserves the right to
reasonably control the timing of said maintenance, repair and replacement in
order to minimize the impact on the ongoing business operations on the DVL
Parcel; provided that such timing restriction does not increase the cost of
doing such maintenance, repair and replacement. However nothing contained herein
shall be deemed to restrict the Owner of the Out Parcel from maintenance, repair
and replacement of the items it places in the Driveway at all times in the case
of an emergency. The Owner of the Out Parcel shall also promptly restore the
Driveway Area to its condition existing prior to performing said maintenance,
repair and replacement.
B. The Owner of the Out Parcel shall maintain, repair and/or replace any
broken utility line, which is both located on the Out Parcel and services both
Parcels except if said work is performed by the utility company. All expenses
associated with said maintenance, repair and/or replacement shall be shared
equally between the Owner of the Out Parcel and the Owner of the DVL Parcel.
C. The Owner of the DVL Parcel shall maintain, repair and/or replace any
broken utility line, which is both located on the Out Parcel and services only
the DVL Parcel except if said work is performed by the utility company. All
expenses associated with said maintenance, repair and replacement shall be the
responsibility of the Owner of the DVL Parcel. The Owner of the Out Parcel
reserves the right to reasonably control the timing of said maintenance, repair
and replacement in order to minimize the impact on its ongoing business
operation; provided that such timing restriction does not increase the cost of
doing such maintenance, repair and replacement. However nothing contained herein
shall be deemed to restrict the Owner of the DVL Parcel from maintenance, repair
and replacement of the Utility Lines at any times in the case of emergency or an
interruption of utility services to the DVL Parcel. The Owner of the DVL Parcel
shall also promptly restore the Out Parcel to its condition existing prior to
performing said maintenance, repair and replacement.
D. Except as provided above, each Owner shall maintain, repair and replace
all portions of the Easement Areas located on its respective Parcel, so as to
keep such area at all times, clean, safe and in good and functional condition
comparable to that of other commercial properties in the area.
E. Each Owner shall pay prior to any penalty attaching thereto, all real
estate taxes, assessments and other taxes, if any, imposed upon the land and
improvements on its respective Parcel.
ARTICLE 4 - INDEMNIFICATION
A. Each Owner shall indemnify and hold the other Owner harmless from and
against any damages, actions, claims and expenses (including reasonable
attorneys' fees) in connection with any loss to persons or damage to property
arising from or out of any occurrence in or upon such Owner's Parcel occasioned
by any act or omission of said Owner, its tenants, agents or contractors,
employees licensees, invitees and occupants.
B. Each Owner shall maintain comprehensive general commercial liability
insurance, in a minimum amount of Five Million Dollars ($5,000,000), combined
single limit for injury to person and damage to property, from a reputable
insurance company with a minimum AM Best Rating of A-, insuring against claims
on account of loss of life, bodily injury or property damage that may arise
from, or be occasioned by the condition, use or occupancy of the Easement area
on its Parcel.
ARTICLE 5 - REMEDIES
A. In the event of a breach by any Owner of any obligation of this
Agreement, the other Owner shall be entitled to obtain an injunction
specifically enforcing the performance of such obligation. The Owners hereby
acknowledge the inadequacy of legal remedies and the irreparable harm which
would be caused by any such breach. Notwithstanding anything to the contrary
contained herein, the Owners may seek relief by any and all other available
legal and equitable means.
B. No delay or omission of any Owner in the exercise of any right accruing
upon any default of any other Owner shall impair such right or be construed to
be a waiver thereof, and every such right may be exercised at any time during
the continuance of such default. A waiver by any Owner of a breach of, or a
default in, any of the terms and conditions of this Agreement by any other Owner
shall not be construed to be a waiver of any subsequent breach of or default in
the same or any other provision of this Agreement. Except as otherwise
specifically provided in this Agreement: (i) no remedy provided in this
Agreement shall be exclusive but each shall be cumulative with all other
remedies provided in this Agreement, and (ii) all remedies at law or in equity
shall be available.
C. No breach of the provisions of this Agreement shall entitle any Owner
or party to cancel, rescind or otherwise terminate this Agreement, but such
limitation shall not affect in any manner, any other rights or remedies which
any party may have hereunder by reason of any breach of the provisions of this
Agreement. No breach of the provisions of this Agreement shall defeat or render
invalid the lien of any mortgage or deed of trust made in good faith for value
covering any part of the Parcel and any improvements thereon.
ARTICLE 6 - TERM
This Agreement, the Easement, and the rights, obligations and liabilities
created hereby shall be perpetual to the extent permitted by law.
ARTICLE 7 - EFFECT OF INSTRUMENT
Every agreement, covenant, promise, undertaking, condition, easement,
right, privilege, option and restriction made, granted or assumed, as the case
may be, by either party to this Agreement is made by such party not only
personally but for the benefit of the other party hereto but also as Owner of
the respective Parcel and shall constitute equitable servitude on the Parcel
owned by such party appurtenant to and for the benefit of the other. Any
transferee of any part of either Parcel shall automatically be deemed, by
acceptance of the title to have assumed all obligations of this Agreement
relating thereto to the extent of its interest in its Parcel and to have agreed
with the then Owner or Owners of all other Parcels to execute any and all
instruments and to do any and all things reasonably required to carry out the
intention of this Agreement, and the transferor shall upon the completion of
such transfer be relieved of all further liability under this Agreement except
liability with respect to matter that may have arisen during its period of
ownership of the portion of the Parcels so conveyed that remain unsatisfied.
ARTICLE 8 - MISCELLANEOUS
A. If any provision of this Agreement, or portion thereof, shall, to any
extent be held invalid, inoperative or unenforceable, the remainder of this
Agreement and each provision
of this Agreement shall be valid and enforceable to the fullest extent permitted
by law.
B. This Agreement shall be construed in accordance with the laws of the
State of New York.
C. The Article headings in this Agreement are for convenience only and
shall not be considered in any construction or interpretation of this Agreement
or any part hereof.
D. Nothing in this Agreement shall be construed to make the parties hereto
partners or joint venturers or render either of said parties liable for the
debts or obligations of the other.
E. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto.
F. This Agreement may not be amended, modified, or terminated at any time
except by a declaration in writing, executed and acknowledged by all the parties
to this Agreement or their assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
DVL, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PIZZAGATES, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: President
STATE OF New York )
) ss:
COUNTY OF New York )
On the 7th day of November in the year 2003 before me, the undersigned, a
Notary Public in and for said state, personally appeared XXXXXXX X. XXXXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument
/s/ Xxxx Xxxxxx
----------------------------------
Notary Public
XXXX XXXXXX
Notary Public, State of New York
No. 02CA6053353
Qualified in Queens County
Commission Expires January 8, 0000
XXXXX XX Xxx Xxxx )
) ss:
COUNTY OF New York )
On the 7th day of November in the year 2003 before me, the undersigned, a
Notary Public in and for said state, personally appeared XXXXXX X. XXXXX
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxx Xxxxxx
----------------------------------
Notary Public
XXXX XXXXXX
Notary Public, State of New York
No. 02CA6053353
Qualified in Queens County
Commission Expires January 8, 2007
AMENDMENT TO RECIPROCAL EASEMENT AND RESTRICTIVE
COVENANT AGREEMENT
THIS AMENDMENT TO RECIPROCAL EASEMENT AND RESTRICTIVE COVENANT AGREEMENT
(this "Agreement") is made as of the ___ day of July, 2004 by and between DVL,
INC., a Delaware Corporation, having an address at 00 Xxxx 00xx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("DVL"), and PIZZAGATES, INC., a New York
Corporation, having an address at 0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxxx 0000-0,
Xxxxxxx, Xxxxxx 00000 ("Pizzagates").
WHEREAS, the parties entered into a Reciprocal Easement and Restrictive Covenant
Agreement (the "Agreement"), dated November 7, 2003 and recorded on November
12th, 2003, in the Washington County Clerks Office in Book 951 of Deeds at Page
310; and
WHEREAS, the parties now wish to amendment the Agreement to clarify
certain maintenance obligations and further amend the Agreement as hereinafter
set forth.
NOW, THEREFORE, by mutual agreement and other good and valuable
consideration, the receipt and sufficiency which are hereby acknowledged, the
parties agree as follows:
1. All capitalized terms not otherwise defined herein shall have the
meanings given them in the Agreement.
2. At the end of Article 3A of the Agreement the following text is
added:
"Any snow removed from the Driveway Area pursuant to this Article
3A, may be stored on the DVL Parcel in the area indicated as the
cross-hatched section on the diagram attached hereto as Exhibit A
(the "Designated Snow Area"). From time to time, or at any time, the
Owner of the DVL Parcel, with not less than ten (10) days written
notice to the Owner of the Out Parcel, may change the location of
the Designated Snow Area, provided that the new location on the DVL
Parcel is accessible by truck.
3. The following text is added to the Agreement as Article 3D:
The Owner of the Out Parcel shall maintain the landscaped area (the
"Out Parcel Landscaped Area") adjacent to the proposed Pizza Hut
Restaurant building at its sole cost and expense. The Owner of the
DVL Parcel shall maintain the landscaped area (the "DVL Parcel
Landscaped Area") located directly across the Driveway from the Out
Parcel Landscaped Area at it sole cost and expense, when and if the
applicable governmental agency requires such an area to be
maintained. Maintenance of both the
Out Parcel Landscaped Area and the DVL Landscaped Area, shall be
deemed to include, without limitation, all cleaning, planting,
watering, mowing and general landscaping needed to keep the
respective landscaped area clean, safe and attractive and in
compliance with governmental requirements.
4. This Amendment may be executed in separate counterparts. It shall be
fully executed when each party have each signed at least one
counterpart even though no one counterpart contains the signature of
both parties.
5. Subject to the provisions of this Amendment, all of the terms,
covenants, and conditions of the Agreement are restated and
reconfirmed and shall remain in full force and effect and binding
upon the parties hereto, their heirs, administrators, and executors.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first written above.
DVL, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PIZZAGATES, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & General Manager
STATE OF New York )
) ss:
COUNTY OF New York )
On the 12th day of July in the year 2004 before me, the undersigned, a
Notary Public in and for said state, personally appeared XXXXXXX X. XXXXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument
/s/ Xxxxx Xxxx
----------------------------------
Notary Public
Xxxxx Xxxx
Notary Public, State of New York
No. 01FU6043540
Qualified in Bronx County
Commission Expires June 0000
XXXXX XX Xxx Xxxx )
) ss:
COUNTY OF Saratoga )
On the 9th day of July in the year 2004 before me, the undersigned, a
Notary Public in and for said state, personally appeared XXXXX X. XXXX
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Notary Public
XXXXX X. XXXXXXXXX
Notary Public for New York
Reg. No. 01CH6015193
Qualified in Saratoga County
Comm. Expires 10/06/06
[MAP OMITTED]
EXHIBIT D
PERMITTED EXCEPTIONS
1. Tax, tax liens, tax sales, water rates, sewer rents, and
assessments set forth herein, not yet due and payable.
2. Any state of facts and inspection of the premises would disclose.
3. Subject to rights and easements, if any, acquired by any public
utilities company to maintain its poles and operate its wires, lines, etc., in,
and to and over the premises herein and in, to and over the streets adjacent
thereto.
4. Underground encroachments and easements, if any, including pipes
and drains, and such rights as may exist for entry upon said premises to
maintain and repair the same, but policy insures, however, that there are no
such easements and rights of record in connection therewith, except as may be
shown herein.
5. Water and sewer rents not included in the regular town, city or
village tax xxxx are not searched for unless expressly so stated herein and are
not insured against.
6. Subdivision Plan made for Pizza Hut dated June 18 2003, as
revised, filed with the Washington County's Clerk's Office.
7. Temporary Easement for Work Area and Grading granted to the New
York State Department of Transportation.
EXHIBIT E
SCHEDULE OF ENVIRONMENTAL REPORTS
1) Environmental
GE
A) Remediation Consent Order Dated 6/13/05
B) A signed Access and Indemnification Agreement, with its draft, dated
September 6, 1996, to install the xxxxx. (Well OBG79 is the only
remaining well).
C) Test results that are in Sellers possession for the xxxxx, from
O'Brien & Xxxx Engineers, Inc.
2) NYDEC
A) Work Plan for Preliminary Site Assessment at the Upper Broadway
Barrel Site Fort Xxxxxx, New York dated July 2003.
B) Report for the Preliminary Site Assessment at the Xxxxx Xxxxxxxx
Xxxx Xxxx Xxxxxx, Xxx Xxxx dated October 2004
3) Xxxxxxx Xxxxxx
A) Preliminary site assessment dated August 31, 2004
B) Work Plan for the removal and disposal of PCBs dated December 2,
2004
C) Closure report date March 22, 2005
D) No Further Concern Letter from NYDEC dated March 9, 2005
