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Exhibit 10.48
154 Contract of sale for New York office, commercial and multi-family Distributed by Xxxxxx Xxxxxxxx, Inc.
residential premises. 1-86. NYC 10013
Prepared by the Real Property Committee of the Association of the Bar or the
City of New York,
NOTE: This form is intended to cover matters common to most transactions.
Provisions should be added, altered or deleted to suit the circumstances of a
particular transaction.
CONTRACT OF SALE--OFFICE, COMMERCIAL AND MULTI-FAMILY RESIDENTIAL PREMISES
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TABLE OF CONTENTS
Section 1. Sale of premises and acceptable title
Section 2. Purchase price, acceptable funds, existing mortgages, purchase
money mortgage, escrow of downpayment and foreign persons
Section 3. The closing
Section 4. Representations and warranties of seller
Section 5. Acknowledgements of purchaser
Section 6. Seller's obligations as to leases
Section 7. Responsibility for violations
Section 8. Destruction, damage or condemnation
Section 9. Covenants of seller
Section 10. Seller's closing obligations
Section 11. Purchaser's closing obligations
Section 12. Apportionments
Section 13. Objections to title, failure of seller or purchaser to perform and
vendee's lien
Section 14. Broker
Section 15. Notices
Section 16. Limitations on survival of representations, warranties, covenants
and other obligations
Section 17. Gains tax and miscellaneous provisions
Signatures and receipt by escrowee
Schedule A. Description of premises (to be attached)
Schedule B. Permitted exceptions
Schedule C. Purchase price
Schedule D. Miscellaneous
Schedule E. Rent schedule (to be attached)
CONTRACT dated 1999 between
MACQUESTEN REALTY COMPANY, a New York Partnership, having an office
at 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, X.X. 00000
("Seller") and
XXXXXXX XXXXXXX JEWELERS, INC. a DELAWARE Corporation, having an
office at 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, X.X. 00000
("Purchaser").
Seller and Purchaser hereby covenant and agree as follows:
SECTION 1. SALE OF PREMISES AND ACCEPTABLE TITLE
Section 1 .01. Seller shall sell to Purchaser, and Purchaser shall
purchase from Seller, at the price and upon the terms and conditions set forth
in this contract: (a) the parcel of land more particularly described in Schedule
A attached hereto ("Land"); (b) all buildings and improvements situated on
the land (collectively, "Building"); (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 Land to the center line thereof and to any unpaid
award for any taking by condemnation or any damage to the Land by reason of a
change of grade of any street or highway; (d) the appurtenances and all the
estate and rights of Seller in and to the Land and Building; and (e) all right,
title and interest of Seller, if any, in and to the fixtures, equipment and
other personal property attached or appurtenant to the Building (collectively,
"Premises"). The Premises are located at or known as
00 Xxxxx XxxXxxxxxx Xxxxxxx and 00 Xxxxx XxxXxxxxxx Xxxxxxx, all in the
city of Mount Xxxxxx, State of New York
Section 1.02. Seller shall convey and Purchaser shall accept fee simple
title to the Premises in accordance with the terms of this contract, subject
only to: (a) the matters set forth in Schedule B attached hereto (collectively,
"Permitted Exceptions"); and (b) such other matters as (i) the title insurer
specified in Schedule D attached hereto (or if none is so specified, then any
title insurer licensed to do business by the State of New York) shall be
willing, without special premium, to omit as exceptions to coverage or to and
(ii) shall be accepted by any lender described in Section 274-a of the Real
Property Law ("Institutional Lender") which has committed in writing to provide
mortgage financing to Purchaser for the purchase of the Premises ("Purchaser's
Institutional Lender").
SECTION 2. PURCHASE PRICE, ACCEPTABLE FUNDS, EXISTING MORTGAGES,
PURCHASE MONEY MORTGAGE, ESCROW OF DOWNPAYMENT AND FOREIGN PERSONS
2.01. The purchase price ("Purchase Price") to be paid by Purchaser
to Seller for the Premises as provided in Schedule C attached hereto is
$2, 450,000.00
Section 2.02. All monies payable under this contract, unless otherwise
specified in this contract, shall be paid by (a) certified checks of Purchaser
or any person making a purchase money loan to Purchaser drawn on any bank,
savings bank trust company or savings and loan association having a banking
office in the State of New York or (b) official bank check drawn by any such
banking institution, payable to the order of the Seller, except that uncertified
checks of Purchaser payable to the order of Seller up to the amount of one-half
of one percent of the Purchase Price shall be acceptable for sums payable to
Seller at the Closing.
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Section 2.03. (a) If Schedule C provides for the acceptance of title by
Purchaser subject to one or more existing mortgages (collectively, "Existing
Mortgage(s)"), the amounts specified in Schedule C with reference thereto may be
approximate. If at the Closing the aggregate principal amount of the Existing
Mortgage(s), as reduced by payments required thereunder prior to the Closing, is
less than the aggregate amount of the Existing Mortgage(s) as specified in
Schedule C, the difference shall be added to the monies payable at the Closing,
unless otherwise expressly provided herein.
(b) If any of the documents constituting the Existing Mortgage(s) or
the note(s) secured thereby prohibits or restricts the conveyance of the
Premises or any part thereof without the prior consent of the holder or holders
thereof ("Mortgagee(s)") or confers upon the Mortgagee(s) the right to
accelerate payment of the indebtedness or to change the terms of the Existing
Mortgage(s) in the event that a conveyance is made without consent of the
Mortgagee(s), Seller shall notify such Mortgagee(s) of the proposed conveyance
to Purchaser within 10 days after execution and delivery of this contract,
requesting the consent of such Mortgagee(s) thereto. Seller and Purchaser shall
furnish the Mortgagee(s) with such information as may reasonably be required
in connection with such request and shall otherwise cooperate with such
Mortgagee(s) and with each other in an effort expeditiously to procure such
consent, but neither shall be obligated to make any payment to obtain such
consent. If such Mortgagee(s) shall fail or refuse to grant such consent in
writing on or before the date set forth in Schedule D or shall require as a
condition of the granting of such consent that the terms of the Existing
Mortgage(s) be changed and Purchaser is unwilling to accept such change, then
unless Seller and Purchaser mutually agree to extend such date or otherwise
modify the terms of this contract, Purchaser may terminate this contract in the
manner provided in Section 13.02.
Section 2.06. In the event that Seller is a "foreign person", as
defined in Internal Revenue Code Section 1445 and regulations issued thereunder
(collectively, the "Code Withholding Section"), or in the event that Seller
fails to deliver the certification of non-foreign status required under Section
10.12(c), or in the event that Purchaser is not entitled under the Code With-
holding Section to rely on such certification, Purchaser shall deduct and with-
hold from the Purchase Price a sum equal to ten percent (10%) thereof and shall
at closing remit the withheld
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amount with Forms 8288 and 8288A (or any successors thereto) to the Internal
Revenue Service; and if the cash balance of the Purchase Price payable to Seller
at the Closing after deduction of net adjustments, apportionments and credits
(if any) to be made or allowed in favor of Seller at the Closing as herein
provided is less than ten percent (10%) of the Purchase Price, Purchaser shall
have the right to terminate this contract, in which event Seller shall refund
the Downpayment to Purchaser and shall reimburse Purchaser for title
examination and survey costs as if this contract were terminated pursuant to
Section 13.02. The right of termination provided for in this Section 2.06 shall
be in addition to and not in limitation of any other rights or remedies
available to Purchaser under applicable law.
SECTION 3. THE CLOSING
Section 3.01. Except as otherwise provided in this contract, the
closing of title pursuant to this contract ("Closing") shall take place on the
scheduled date and time of closing specified in Schedule D (the actual date of
the Closing being herein referred to as "Closing Date") at the place specified
in Schedule D.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
Section 4.01. Unless otherwise provided in this contract, Seller is the
sole owner of the Premises.
Section 4.02. If the Premises are encumbered by an Existing
Mortgage(s), no written notice has been received from the Mortgagee(s)
asserting that a default or breach exists thereunder which remains uncured and
no such notice shall have been received and remain uncured on the Closing Date.
If copies of documents constituting the Existing Mortgage(s) and note(s) secured
thereby have been exhibited to and initialed by Purchaser or its representative,
such copies are true copies of the originals and the Existing Mortgage(s) and
note(s) secured thereby have not been modified or amended except as shown in
such documents.
Section 4.03. The information concerning written leases (which together
with all amendments and modifications thereof are collectively referred to as
"Leases") and any tenancies in the Premises not arising out of the Leases
(collectively, "Tenancies") set forth in Schedule E attached hereto ("Rent
Schedule") is accurate as of the date set forth therein or, if no date is set
forth therein, as of the date hereof, and there are no Leases or Tenancies of
any space in the Premises other than those set forth therein and any subleases
or subtenancies. Except as otherwise set forth in the Rent Schedule or
elsewhere in this contract:
(a) all of the Leases are in full force and effect and none of them has
been modified, amended or extended;
(b) no renewal or extension options have been granted to tenants;
(c) no tenant has an option to purchase the Premises;
(d) the rents set forth are being collected on a current basis and
there are no arrearages in excess of one month;
(e) no tenant is entitled to rental concessions or abatements for any
period subsequent to the scheduled date of closing;
(f) Seller has not sent written notice to any tenant claiming that such
tenant is in default, which default remains uncured;
(g) no action or proceeding instituted against Seller by any tenant of
the Premises is presently pending in any court, except with respect to claims
involving personal injury or property damage which are covered by insurance; and
(h) there are no security deposits other than those set forth in the
Rent Schedule.
If any Leases which have been exhibited to and initialed by
Purchaser or its representative contain provisions that are inconsistent with
the foregoing representations and warranties, such representations and
warranties shall be deemed modified to the extent necessary to eliminate such
inconsistency and to conform such representations and warranties to the
provisions of the Leases.
Section 4.04. If the Premises or any part thereof are subject to the
New York City Rent Stabilization Law, Seller is and on the Closing Date will be
a member in good standing of the Real Estate Industry Stabilization Association,
and, except as otherwise set forth in the Rent Schedule, there are no proceed-
ings with any tenant presently pending before the Conciliation and Appeals Board
in which a tenant has alleged an overcharge of rent or diminution of services
or similar grievance, and there are no outstanding orders of the Conciliation
and Appeals Board that have not been complied with by Seller.
Section 4.05. If the Premises or any part thereof are subject to the
New York City Emergency Rent and Rehabilitation Law, the rents shown are not in
excess of the maximum collectible rents, and, except as otherwise set forth in
the Rent Schedule, no tenants are entitled to abatements as senior citizens,
there are no proceedings presently pending before the rent commission in which
a tenant has alleged an overcharge of rent or diminution of services or similar
grievance, and there are no outstanding orders of the rent commission that have
not been complied with by Seller.
Section 4.06. If an insurance schedule is attached hereto, such
schedule lists all insurance policies presently affording coverage with respect
to the Premises, and the information contained therein is accurate as of the
date set forth therein or, if no date is set forth therein, as of the date
hereof.
Section 4.07. If a payroll schedule is attached hereto, such schedule
lists all employees presently employed at the Premises, and the information
contained therein is accurate as of the date set forth therein or, if no date is
set forth therein, as of the date hereof, and, except as otherwise set forth in
such schedule, none of such employees is covered by a union contract and there
are no retroactive increases or other accrued and unpaid sums owed to any
employee.
Section 4.08. If a schedule of service, maintenance, supply and
management contracts ("Service Contracts") is attached hereto, such schedule
lists all such contracts affecting the Premises, and the information set forth
therein is accurate as of the date set forth therein or, if no date is set forth
therein, as of the date hereof.
Section 4.09. If a copy of a certificate of occupancy for the Premises
has been exhibited to and initialed by Purchaser or its representative, such
copy is a true copy of the original and such certificate has not been amended,
but Seller makes no representation as to compliance with any such certificate.
Section 4.10. The assessed valuation and real estate taxes set forth in
Schedule D, if any, are the assessed valuation of the Premises and the taxes
paid or payable with respect thereto for the fiscal year indicated in such
schedule. Except as otherwise set forth in Schedule D, there are no tax
abatements or exemptions affecting the Premises.
Section 4.11. Except as otherwise set forth in a schedule attached
hereto, if any, if the Premises are used for residential purposes, each
apartment contains a range and a refrigerator, and all of the ranges and
refrigerators and all of the items of personal property (or replacements
thereof) listed in such schedule, if any, are and on the Closing Date will be
owned by Seller free of liens and encumbrances other than the lien(s) of the
Existing Mortgage(s), if any.
Section 4.12. Seller has no actual knowledge that any incinerator,
boiler or other burning equipment on the Premises is being operated in violation
of applicable law. If copies of a certificate or certificates of operation
therefor have been exhibited to and initialed by Purchaser or its
representative, such copies are true copies of the originals.
Section 4.13. Except as otherwise set forth in Schedule D, Seller has
no actual knowledge of any assessment payable in annual installments, or any
part thereof, which has become a lien on the Premises.
Section 4.14. Seller is not a "foreign person" as defined in the Code
Withholding Section.
SECTION 5. ACKNOWLEDGMENTS OF PURCHASER
Purchaser acknowledges that:
Section 5.01. Purchaser has inspected the Premises, is fully familiar
with the physical condition and state of repair thereof, and, subject to the
provisions of Section 7.01, Section 8.01, and Section 9.04, shall accept the
Premises "as is" and in their present condition, subject to reasonable use,
wear, tear and natural deterioration between now and the Closing Date, without
any reduction in the Purchase Price for any change in such condition by reason
thereof subsequent to the date of this contract.
Section 5.02. Before entering into this contract, Purchaser has made
such examination of the Premises, the operation, income and expenses thereof and
all other matters affecting or relating to this transaction as Purchaser deemed
necessary. In entering into this contract, Purchaser has not been induced by and
has not relied upon any representations, warranties or statements, whether or
implied, made by Seller or any agent, employee or other representative of Seller
or by any broker or any other person representing or purporting to represent
Seller, which are not expressly set forth in this contract, whether or not any
such representations, warranties or statements were made in writing or orally.
SECTION 6. SELLER'S OBLIGATIONS AS TO LEASES
Section 6.01. Unless otherwise provided in a schedule attached to this
contract, between the date of this contract and the Closing, Seller shall not,
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld: (a) amend, renew or extend any Lease in any respect,
unless required by law; (b) grant a written lease to any tenant occupying space
pursuant to a Tenancy; or (c) terminate any Lease or Tenancy except by reason of
a default by the tenant thereunder.
Section 6.02. Unless otherwise provided in a schedule attached to this
contract, between the date of this contract and the Closing, Seller shall not
permit occupancy of, or enter into any new lease for, space in the Building
which is presently vacant or which may hereafter become vacant without first
giving Purchaser written notice of the identity of the proposed tenant, together
with (a) either a copy of the proposed lease or a summary of the terms thereof
in reasonable detail and (b) a
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statement of the amount of the brokerage commission, if any, payable in
connection therewith and the terms of payment thereof. If Purchaser objects to
such proposed lease, Purchaser shall so notify Seller within 4 business days
after receipt of Seller's notice if such notice was personally delivered to
Purchaser, or within 7 business days after the mailing of such notice by Seller
to Purchaser, in which case Seller shall not enter into the proposed lease.
Unless otherwise provided in a schedule attached to this contract, Purchaser
shall pay to Seller at the Closing, in the manner specified in Section 2.02, the
rent and additional rent that would have been payable under the proposed lease
from the date on which the tenant's obligation to pay rent would have commenced
if Purchaser had not so objected until the Closing Date, less the amount of the
brokerage commission specified in Seller's notice and the reasonable cost of
decoration or other work required to be performed by the landlord under the
terms of the proposed lease to suit the premises to the tenant's occupancy
("Reletting Expenses"), prorated in each case over the term of the proposed
lease and apportioned as of the Closing Date. If Purchaser does not so notify
Seller of its objection, Seller shall have the right to enter into the proposed
lease with the tenant identified in Seller's notice and Purchaser shall pay to
Seller, in the manner specified in Section 2.02, the Reletting Expenses,
prorated in each case over the term of the lease and apportioned as of the later
of the Closing Date or the rent commencement date. Such payment shall be made by
Purchaser to Seller at the Closing. In no event shall the amount so payable to
Seller exceed the sums actually paid by Seller on account thereof.
Section 6.03. If any space is vacant on the Closing Date, Purchaser
shall accept the Premises subject to such vacancy, provided that the vacancy
was not permitted or created by Seller in violation of any restrictions
contained in this contract. Seller shall not grant any concessions or rent
abatements for any period following the Closing without Purchaser's prior
written consent. Seller shall not apply all or any part of the security deposit
of any tenant unless such tenant has vacated the Premises.
Section 6.04. Seller does not warrant that any particular Lease or
Tenancy will be in force or effect at the Closing or that the tenants will have
performed their obligations thereunder. The termination of any Lease or Tenancy
prior to the Closing by reason of the tenant's default shall not affect the
obligations of Purchaser under this contract in any manner or entitle Purchaser
to an abatement of or credit against the Purchase Price or give rise to any
other claim on the part of Purchaser.
Section 6.05. Seller hereby indemnifies and agrees to defend Purchaser
against any claims made pursuant to Section 7-107 or Section 7-108 of the
General Obligations Law (the "GOL") by tenants who resided in the Premises on or
prior to the Closing Date other than (a) claims with respect to tenants'
security deposits paid, credited or assigned to Purchaser pursuant to Section
10.03, (b) claims made pursuant to Section 7-107 of the GOL with respect to
funds for which Seller was not liable, and (c) claims made pursuant to Section
7-108 of the GOL by tenants to whom Purchaser failed to give the written notice
specified in Section 7-108(c) of the GOL within thirty days after the Closing
Date. The foregoing indemnity and agreement shall survive the Closing and shall
be in lieu of any escrow permitted by Section 7-108(d) of the GOL, and Purchaser
hereby waives any right it may have to require any such escrow.
SECTION 7. RESPONSIBILITY FOR VIOLATIONS
SECTION 8. DESTRUCTION, DAMAGE OR CONDEMNATION
Section 8.01. The provisions of Section 5-1311 of the General
Obligations Law shall apply to the sale and purchase provided for in this
contract.
SECTION 9. COVENANTS OF SELLER
Seller covenants that between the date of this contract and the
Closing:
Section 9.01. The Existing Mortgage(s) shall not be amended or
supplemented or prepaid in whole or in part. Seller shall pay or make, as and
when due and payable, all payments of principal and interest and all deposits
required to be paid or made under the Existing Mortgage(s).
Section 9.02. Seller shall not modify or amend any Service Contract or
enter into any new service contract unless the same is terminable without
penalty by the then owner of the Premises upon not more than 30 days' notice.
Section 9.03. If an insurance schedule is attached hereto, Seller shall
maintain in full force and effect until the Closing the insurance policies
described in such schedule or renewals thereof for no more than one year of
those expiring before the Closing.
Section 9.04. No fixtures, equipment or personal property included in
this sale shall be removed from the Premises unless the same are replaced with
similar items of at least equal quality prior to the Closing.
Section 9.05. Seller shall not withdraw, settle or otherwise compromise
any protest or reduction proceeding affecting real estate taxes assessed
against the Premises for any fiscal period in which the Closing is to occur or
any subsequent fiscal period without the prior written consent of Purchaser,
which consent shall not be unreasonably withheld. Real estate tax refunds and
credits received after the Closing Date which are attributable to the fiscal
tax year during which the Closing Date occurs shall be apportioned between
Seller and Purchaser, after deducting the expenses of collection thereof,
which obligation shall survive the Closing.
Section 9.06. Seller shall allow Purchaser or Purchaser's
representatives access to the Premises, the Leases and other documents required
to be delivered under this contract upon reasonable prior notice at reasonable
times.
SECTION 10. SELLER'S CLOSING OBLIGATIONS
At or prior to the Closing, Seller shall deliver the following to
Purchaser:
Section 10.01. A statutory form of bargain and sale deed without
covenant against grantor's acts, containing the covenant required by Section 13
of the Lien Law, and properly executed in proper form for recording so as to
convey the title required by this contract.
Section 10.02. All Leases initialed by Purchaser and all others in
Seller's possession.
Section 10.03. A schedule of all security deposits (and, if the
Premises contains six or more family dwelling units, the most recent reports
with respect thereto issued by each banking organization in which they are
deposited pursuant to GOL Section 7-103) and a check or credit to Purchaser in
the amount of any cash security deposits, including any interest thereon, held
by Seller on the Closing Date or, if held by an Institutional Lender, an
assignment to Purchaser and written instructions to the holder of such deposits
to transfer the same to Purchaser, and appropriate instruments of transfer or
assignment with respect to any security deposits which are other than cash.
Section 10.04. A schedule updating the Rent Schedule and setting forth
all arrears in rents and all prepayments of rents.
Section 10.05. All Service Contracts initialed by Purchaser and all
others in Seller's possession which are in effect on the Closing Date and which
are assignable by Seller.
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Section 10.06. An assignment to Purchaser, without recourse or
warranty, of all of the interest of Seller in those Service Contracts, insurance
policies, certificates, permits and other documents to be delivered to Purchaser
at the Closing which are then in effect and are assignable by Seller.
Section 10.07. (a) Written consent(s) of the Mortgagee(s), if required
under Section 2.03(b), and (b) certificate(s) executed by the Mortgagee(s) in
proper form for recording and certifying (i) the amount of the unpaid principal
balance thereof, (ii) the maturity date thereof, (iii) the interest rate, (iv)
the last date to which interest has been paid thereon and (v) the amount of any
escrow deposits held by the Mortgagee(s). Seller shall pay the fees for
recording such certificate(s). Any Mortgagee which is an Institutional Lender
may furnish a letter complying with Section 274-a of the Real Property Law in
lieu of such certificate.
Section 10.08, An assignment of all Seller's right, title and interest
in escrow deposits for real estate taxes, insurance premiums and other amounts,
if any, then held by the Mortgagee(s).
Section 10.09. All original insurance policies with respect to which
premiums are to be apportioned or, if unobtainable, true copies or certificates
thereof.
Section 10.10. To the extent they are then in Seller's possession and
not posted at the Premises, certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Premises by governmental and
quasi-governmental authorities having jurisdiction.
Section 10.11. Such affidavits as Purchaser's title company shall
reasonably require in order to omit from its title insurance policy all
exceptions for judgments, bankruptcies or other returns against persons or
entities whose names are the same as or similar to Seller's name.
Section 10.12(a) Checks to the order of the appropriate officers in
payment of all applicable real property transfer taxes and copies of any
required tax returns therefor executed by Seller, which checks shall be
certified or official bank checks if required by the taxing authority, unless
Seller elects to have Purchaser pay any of such taxes and credit Purchaser with
the amount thereof, (b) the Tentative Assessment and Return or Statement of No
Tax Due or affidavit (whichever is applicable) and the checks and other items
(if any) required under Section 17.09(a), and (c) a certification of non-foreign
status, in form required by the Code Withholding Section, signed under penalty
of perjury. Seller understands that such certification will be retained by
Purchaser and will be made available to the Internal Revenue Service on
request.
Section 10.13. To the extent they are then in Seller's possession,
copies of current painting and payroll records. Seller shall make all other
Building and tenant files and records available to Purchaser for copying, which
obligation shall survive the Closing.
Section 10.14. An original letter, executed by Seller or by its agent,
advising the tenants of the sale of the Premises to Purchaser and directing that
rents and other payments thereafter be sent to Purchaser or as Purchaser may
direct.
Section 10.15. Notice(s) to the Mortgagee(s), executed by Seller or by
its agent, advising of the sale of the Premises to Purchaser and directing that
future bills and other correspondence should thereafter be sent to Purchaser or
as Purchaser may direct.
Section 10.16. If Seller is a corporation and if required by Section
909 of the Business Corporation Law, a resolution of Seller's board of directors
authorizing the sale and delivery of the deed and a certificate executed by the
secretary or assistant secretary of Seller certifying as to the adoption of such
resolution and setting forth facts showing that the transfer complies with
the requirements of such law. The deed referred to in Section 10.01 shall also
contain a recital sufficient to establish compliance with such law.
Section 10.17. Possession of the Premises in the condition required
by this contract, subject to the Leases and Tenancies, and keys therefor.
Section 10.18. Any other documents required by this contract to be
delivered by Seller.
SECTION 11. PURCHASER'S CLOSING OBLIGATIONS
At the Closing, Purchaser shall:
Section 11.01. Deliver to Seller checks in payment of the portion of
the Purchase Price payable at the Closing, as adjusted for apportionments under
Section 12, plus the amount of escrow deposits, if any, assigned pursuant to
Section 10.08.
Section 11.03. Deliver to Seller an agreement indemnifying and agreeing
to defend Seller against any claims made by tenants with respect to tenants'
security deposits to the extent paid, credited or assigned to Purchaser under
Section 10.03.
Section 11.04. Cause the deed to be recorded, duly complete all
required real property transfer tax returns and cause all such returns and
checks of the Seller in payment of such taxes to be delivered to the appropriate
officers promptly after the Closing.
Section 11.05. Deliver any other documents required by this contract to
be delivered by Purchaser.
SECTION 12. APPORTIONMENTS
Section 12.01. The following apportionments shall be made between the
parties at the Closing as of the close of business on the day prior to the
Closing Date:
(a) prepaid rents and Additional Rents (as defined in Section 12.03);
(b) interest on the Existing Mortgage(s);
(c) real estate taxes, water charges, sewer rents and vault charges, if
any, on the basis of the fiscal period for which assessed, except that if there
is a water meter on the Premises, apportionment at the Closing shall be based on
the last available reading, subject to adjustment after the Closing when the
next reading is available;
(d) wages, vacation pay, pension and welfare benefits and other fringe
benefits of all persons employed at the Premises whose employment was not
terminated at or prior to the Closing;
(e) value of fuel stored on the Premises, at the price then charged by
Seller's supplier, including any taxes;
(f) charges under transferable Service Contracts or permitted renewals
or replacements thereof;
(g) permitted administrative charges, if any, on tenants' security
deposits;
(h) dues to rent stabilization associations, if any;
(i) insurance premiums on transferable insurance policies listed on a
schedule hereto or permitted renewals thereof;
(j) Reletting Expenses under Section 6.02, if any; and
(k) any other items listed in Schedule D.
If the Closing shall occur before a new tax rate is fixed, the
apportionment of taxes at the Closing shall be upon the basis of the old tax
rate for the preceding period applied to latest assessed valuation. Promptly
after the new tax rate is fixed, the apportionment of taxes shall be recomputed.
Any discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at Closing shall be promptly corrected, which
obligations shall survive the Closing.
Section 12.02. If any tenant is in arrears in the payment of rent on
the Closing Date, rents received from such tenant after the Closing shall be
applied in the following order of priority: (a) first to the month preceding the
month in which the Closing occurred; (b) then to the month in which the Closing
occurred; (c) then to any month or months following the month in which the
Closing occurred; and (d) then to the period prior to the month preceding the
month in which the Closing occurred. If rents or any portion thereof received by
Seller or Purchaser after the Closing are payable to the other party by reason
of this allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection thereof, shall be
promptly paid to the other party, which obligation shall survive the Closing.
Section 12.03. If any tenants are required to pay percentage rent,
escalation charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Parchaser shall promptly pay to Seller Seller's proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and expenses
of collection thereof, if and when the tenant paying the same has made all
payments of rent and Additional Rent then due to Purchaser pursuant to the
tenant's Lease, which obligation shall survive the Closing.
SECTION 13. OBJECTIONS TO TITLE, FAILURE OF SELLER OR PURCHASER TO PERFORM AND
VENDEE'S LIEN
Section 13.01. Purchaser shall promptly order an examination of title
and shall cause a copy of the title report to be forwarded to Seller's attorney
upon receipt. Seller shall be entitled to a reasonable adjournment or
adjournments of the Closing for up to 60 days or until the expiration date of
any written commitment of Purchaser's Institutional Lender delivered to
Purchaser prior to the scheduled date of Closing, whichever occurs first, to
remove any defects in or objections to title noted in such title report and any
other defects or objections which may be disclosed on or prior to the Closing
Date.
6
Section 13.03. Any unpaid taxes, assessments, water charges and sewer
rents, together with the interest and penalties thereon to a date not less than
two days following the Closing Date, and any other liens and encumbrances which
Seller is obligated to pay and discharge or which are against corporations,
estates or other persons in the chain of title, together with the cost of
recording or filing any instruments necessary to discharge such liens and
encumbrances of record, may be paid out of the proceeds of the monies payable at
the Closing if Seller delivers to Purchaser on the Closing Date official bills
for such taxes, assessments, water charges, sewer rents, interest and penalties
and instruments in recordable form sufficient to discharge any other liens and
encumbrances of record. Upon request made a reasonable time before the Closing,
Purchaser shall provide at the Closing separate checks for the foregoing payable
to the order of the holder of any such lien, charge or encumbrance and otherwise
complying with Section 2.02. If Purchaser's title insurance company is willing
to insure both Purchaser and Purchaser's Institutional Lender, if any, that such
charges, liens and encumbrances will not be collected out of or enforced against
the Premises, then, unless Purchaser's Institutional Lender reasonably refuses
to accept such insurance in lieu of actual payment and discharge, Seller shall
have the right in lieu of payment and discharge to deposit with the title
insurance company such funds or assurances or to pay such special or additional
premiums as the title insurance company may require in order to so insure. In
such case the charges, liens and encumbrances with respect to which the title
insurance company has agreed so to insure shall not be considered objections to
title.
Section 13.04. If Purchaser shall default in the performance of its
obligation under this contract to purchase the Premises, the sole remedy of
Seller shall be to retain the Downpayment as liquidated damages for all loss,
damage and expense suffered by Seller, including without limitation the loss of
its bargain.
Section 13.05. Purchaser shall have a vendee's lien against the
Premises for the amount of the Downpayment, but such lien shall not continue
after default by Purchaser under this contract.
SECTION 14. BROKER
Section 14.01. If a broker is specified in Schedule D, Seller and
Purchaser mutually represent and warrant that such broker is the only broker
with whom they have dealt in connection with this contract and that neither
Seller nor Purchaser knows of any other broker who has claimed or may have the
right to claim a commission in connection with this transaction, unless
otherwise indicated in Schedule D. The commission of such broker shall be paid
pursuant to separate agreement by the party specified in Schedule D. If no
broker is specified in Schedule D, the parties acknowledge that this contract
was brought about by direct negotiation between Seller and Purchaser and that
neither Seller nor Purchaser knows of any broker entitled to a commission in
connection with this transaction, Unless otherwise provided in Schedule D,
Seller and Purchaser shall indemnify and defend each other against any costs,
claims or expenses, including attorneys' fees, arising out of the breach on
their respective parts of any representations, warranties or agreements
contained in this paragraph. The representations and obligations under this
paragraph shall survive the Closing or, if the Closing does not occur, the
termination of this contract.
SECTION 15. NOTICES
Section 15.01. All notices under this contract shall be in writing and
shall be delivered personally or shall be sent by prepaid registered or
certified mail, addressed as set forth in Schedule D, or as Seller or Purchaser
shall otherwise have given notice as herein provided.
SECTION 16. LIMITATIONS ON SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS
AND OTHER OBLIGATIONS
Section 16.01. Except as otherwise provided in this contract, no
representations, warranties, covenants or other obligations of Seller set forth
in this contract shall survive the Closing and no action based thereon shall be
commenced after the Closing. The representations, warranties, covenants and
other obligations of Seller set forth in Section 4.03, Section 6.01 and Section
6.02 shall survive until the Limitation Date specified in Schedule D (or if none
is so specified, the Limitation Date shall be the date which is six months after
the Closing Date), and no action based thereon shall be commenced after the
Limitation Date.
Section 16.02. The delivery of the deed by Seller, and the acceptance
thereof by Purchaser, shall be deemed the full performance and discharge of
every obligation on the part of Seller to be performed hereunder, except those
obligations of Seller which are expressly stated in this contract to survive the
Closing.
SECTION 17. GAINS TAX AND MISCELLANEOUS PROVISIONS
Section 17.01. If consent of the Existing Mortgagee(s) is required
under Section 2.03(b), Purchaser shall not assign this contract or its rights
hereunder without the prior written consent of Seller. No permitted assignment
of Purchaser's rights under this contract shall be effective against Seller
unless and until an executed counterpart of the instrument of assignment shall
have been delivered to Seller and Seller shall have been furnished with the name
and address of the assignee. The term "Purchaser" shall be deemed to include the
assignee under any such effective assignment.
Section 17.02. This contract embodies and constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior agreements, understandings, representations and
statements, oral or written, are merged into this contract. Neither this
contract nor any provision hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the party against whom the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
Section 17.03. This contract shall be governed by, and construed in
accordance with, the law of the State of New York.
Section 17.04. The captions in this contract are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this contract or any of the provisions hereof.
Section 17.05. This contract shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs or successors and
permitted assigns.
Section 17.06. This contract shall not be binding or effective until
properly executed and delivered by Seller and Purchaser.
Section 17.07. As used in this contract, the masculine shall include
the feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
Section 17.08. If the provisions of any schedule or rider to this
contract are inconsistent with the provisions of this contract, the provisions
of such schedule or rider shall prevail. Set forth in Schedule D is a list of
any and all schedules and riders which are attached hereto but which are not
listed in the Table of Contents.
Section 17.09. (a) Seller and Purchaser agree to comply in a timely
manner with the requirements of Article 31-B of the Tax Law of the State of New
York and the regulations applicable thereto, as the same from time to time may
be amended (collectively, the "Gains Tax Law"). Purchaser agrees to deliver to
Seller a duly executed and acknowledged Transferee Questionnaire
simultaneously with the execution of this contract or within five (5) business
days after subsequent written request from Seller or Seller's attorney. At the
Closing, Seller shall deliver (i) an official Statement of No Tax Due or (ii)
an official Tentative Assessment and Return accompanied by a certified check or
official bank check drawn on any banking institution described in Section
2.02(a), payable to the order of the State Tax Commission in the amount of the
tax shown to be due thereon (it being understood, however, that if Seller has
duly elected to pay such tax in installments, the amount so required to be paid
shall be the minimum installment of such tax then permitted to be paid), or
(iii) if applicable, a duly executed and acknowledged affidavit in form
permitted under the Gains Tax Law claiming exemption therefrom.
(b) Seller agrees (i) to pay promptly any installment(s) or
additional tax due under the Gains Tax Law, and interest and penalties thereon,
if any, which may be assessed or due after the Closing, (ii) to indemnify and
save the Purchaser harmless from and against any of the foregoing and any
damage, liability, cost or expense (including reasonable attorneys' fees)
which may be suffered or incurred by Purchaser by reason of the non-payment
thereof, and (iii) to make any other payments and execute, acknowledge and
deliver such further documents as may be necessary to comply with the Gains Tax
Law.
(c) If this contract is assignable by Purchaser, no assignment of any
rights hereunder shall be effective unless every assignor and assignee complies
in a timely manner with the requirements of the Gains Tax Law applicable to the
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xxxxx to Seller at or before the Closing the applicable items referred to in
subparagraph (a) of this Section, all as may be required as a prerequisite to
the recording of the deed. In addition to making the payments and delivering the
instruments and documents referred to above, Purchaser and any assignor or
assignee of this contract shall promptly (i) make any other payments and (ii)
execute, acknowledge and deliver such further documents and instruments as may
be necessary to comply with the Gains Tax Law.
(d) Purchaser, if request is made within a reasonable time prior to
the Closing Date, shall provide at the Closing a separate certified or official
bank check drawn on any banking institution described in Section 2.02(a) in the
amount of the tax shown to be due on the official Tentative Assessment and
Return, which amount shall be credited against the balance of the Purchase Price
payable at the Closing.
(e) The provisions of this Section 17.09 shall survive the delivery of
the deed.
IN WITNESS WHEREOF, the parties hereto have executed this contract as of the
date first above written.
Seller: MACQUESTEN REALTY COMPANY
By:
------------------------------
XXXXXXX XXXXXXXXX, PARTNER
Purchaser:
XXXXXXX XXXXXXX JEWELERS, INC.
By:
------------------------------
RECEIPT BY ESCROWEE
The undersigned Escrowee hereby acknowledges receipt of $ _______________, by
check subject to collection, to be held in escrow pursuant to Section 2.05.
------------------------
SCHEDULE A
DESCRIPTION OF PREMISES
(to be attached separately and to include tax map designation)
SCHEDULE B
PERMITTED EXCEPTIONS
1. Zoning regulations and ordinances which are not violated by the
existing structures or present use thereof and which do not render title
uninsurable.
2. Consents by the Seller or any former owner of the Premises for the
erection of any structure or structures on, under or above any street or streets
on which the Premises may abut.
3. The Existing Mortgage(s) and financing statements, assignments of
leases and other collateral assignments ancillary thereto.
4. Leases and Tenancies specified in the Rent Schedule and any new
leases or tenancies not prohibited by this contract.
5. Unpaid installments of assessments not due and payable on or before
the Closing Date.
6. Financing statements, chattel mortgages and liens on personalty
filed more than 5 years prior to the Closing Date and not renewed, or filed
against property or equipment no longer located on the Premises or owned by
Tenants.
7. (a) Rights of utility companies to lay, maintain, install and repair
pipes, lines, poles, conduits, cable boxes and related equipment on, over and
under the Premises, provided that none of such rights imposes any monetary
obligation on the owner of the Premises.
(b) Encroachments of xxxxxx, areas, cellar steps, trim cornices,
lintels, window xxxxx, awnings, canopies, ledges, fences, xxxxxx, coping and
retaining walls projecting from the Premises over any street or highway or over
any adjoining property and encroachments of similar elements projecting from
adjoining property over the Premises.
(c) Revocability or lack of right to maintain vaults, coal chutes,
excavations or sub-surface equipment beyond the line of the Premises.
(d) Any state of facts that an accurate survey would disclose,
provided that such facts do not render title unmarketable. For the purposes of
this contract, none of the facts shown on the survey, if any, identified below
shall be deemed to render title unmarketable, and Purchaser shall accept title
subject thereto:
(e) Covenants, restrictions and easements of record as set forth in
Schedule F, annexed hereto.
(f) Leases and tenancies as set forth in Schedule E hereto annexed.
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SCHEDULE C
PURCHASE PRICE
The Purchase Price shall be paid as follows:
(a) By check subject to collection, the receipt of which is
hereby acknowledged by Seller:
(b) By check or checks delivered to Seller at the Closing in
accordance with the provisions of section 2.02: $1,455,915.00
(c) By acceptance of title subject to the following Existing
Mortgage(s):
Mortgage dated August 16, 1993 between Xxxxxxx Xxxxxxx Company as
Mortgagor and First Fidelity Bank, N.A. as Mortgagee $944,085.00
(d) By execution and delivery to Seller by Purchaser or its assignee
of a note secured by a Purchase Money Mortgage on the Premises, payable as
follows:
--------------
PURCHASE PRICE $ 2,450,000.00
==============
SCHEDULE D
MISCELLANEOUS
1. Title insurer designated by the parties (section 1.02):
2. Last date for consent by Existing Mortgagee(s) (section 2.03(b)):
3. Maximum Interest Rate of any Refinanced Mortgage (section 2.04(b)):
N/A
4. Prepayment Date on or after which Purchase Money Mortgage may be prepaid
(section 2.04(c)):
N/A
5. Seller's tax identification number (section 2.05):
00-0000000
6. Purchaser's tax identification number (section 2.05):
00-0000000
7. Scheduled time and date of Closing (section 3.01):
8. Place of Closing (section 3.01):
000 Xxxxx XxxXxxxxxx Xxxxxxx,
Xxxxx Xxxxxx, XX 00000
9. Assessed valuation of Premises (section 4.10):
Actual Assessment: See Rider
Transition Assessment:
10. Fiscal year and annual real estate taxes on Premises (section 4.10):
See Rider
11. Tax abatements or exemptions affecting Premises (section 4.10):
N/A
12. Assessments on Premises (section 4.13):
NONE
13. Maximum Amount which Seller must spend to cure violations, etc.
(section 7.02):
N/A
14. Maximum Expense of Seller to cure title defects, etc.
(section 13.02): NONE
15. Broker, if any (section 14.01):
NONE
16. Party to pay broker's commission (section 14.01):
N/A
17. Address for notices (section 15.01):
If to Seller: Xxxxxxx Paolercia
MacQuesten Realty Company
000 Xxxxx XxxXxxxxxx Xxxxxxx
Xxxxx Xxxxxx, XX 00000
with a copy to Seller's attorney:
Xxxxxxx Xxxxx, Esq.
0 Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
If to Purchaser: Xxxxx Xxxx
Xxxxxxx Xxxxxxx Jewelers, Inc.
000 Xxxxx XxxXxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
with a copy to Purchaser's attorney:
Xxxxxxx Xxxxxxxx, Esq.
00-00 000xx Xxxxxx
Xxxxxxxx, XX 00000
18. Limitation Date for actions based on Seller's surviving representations and
other obligations (section 16.01):
19. Additional Schedules or Riders (section 17.08):
SCHEDULE E
RENT SCHEDULE
(to be attached separately)
9
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RIDER TO CONTRACT OF SALE
BETWEEN: MACQUESTEN REALTY COMPANY, SELLERS, and XXXXXXX XXXXXXX JEWELERS, INC.,
PURCHASERS, of PREMISES: 00 Xxxxx XxxXxxxxxx Xxxxxxx and 00 Xxxxx XxxXxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
1. This rider is part of the above captioned Contract of sale. If any
of the provisions of this rider shall conflict with or be inconsistent with any
printed provisions of this contract, then the provisions of this rider shall
control.
2. In the event that the Seller shall be unable to convey marketable
title to the premises hereinabove described, subject to the liens, encumbrances
and defects herein specifically enumerated, the Purchaser shall, at his
election, have the right to accept such title as the Seller is able to convey,
without any claim on the part of the Purchaser for abatement for defects or
objections; or the Purchaser shall have the right to rescind this contract and
upon such rescission, pursuant to this paragraph, the Purchaser shall be
entitled to reimbursement for title company charges, if the Purchaser has
ordered title insurance, or the cost of an abstract of title, if ordered, and
upon such reimbursement, this contract shall be null, void and of no force and
effect and the Seller shall then be under no obligation or liability whatever to
the Purchaser for any damages that the Purchaser may have sustained by reason of
the Seller's failure to convey title hereunder.
3. Violations filed in any County, City, State or Federal Department
shall not be an objection to title, and the Purchaser shall take title subject
to all such violations.
4. Liens for unpaid franchise tax of any corporation in the chain of
title, and liens for transfer, inheritance, estate or other similar taxes,
whether fixed or undetermined, shall be no objection to title provided the
Seller, at closing of title, makes a deposit with Purchaser's title insurance
company
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sufficient to induce them to omit any such exceptions from the policy they
deliver to the Purchaser and the Purchaser's Lending Institution and further
that the Purchaser's Lending Institution shall consent to same.
5. The Purchaser had inspected the premises and agrees to take said
premises "AS IS" in its present physical condition, and the Seller has made no
representation or warranty other than any specifically set forth herein.
6. Seller covenants that it shall exert its best efforts to obtain the
consent of the Mortgagee of the Existing Mortgage for the Purchaser to take the
Premises subject to the Existing Mortgage and that the Purchaser shall assume
and agree to pay such Mortgage and any fees payable to Mortgagee as a result of
this sale. It shall be a condition to the assumption of the Mortgage by
Purchaser that upon the execution and delivery of the deed provided for
hereunder, Seller, its predecessor entity, Xxxxxxx Xxxxxxx Company, and Xxxxxxx
Xxxxxxxxx and Xxxxxxx Xxxxxxxxx, as individual guarantors, be released from any
and all obligations arising under the provisions of the Existing Mortgage, Term
Loan Note and Individual Guaranty(s), all of which are dated April 16, 1993.
7. Supplementing Section 2.03 of the form of the Contract of Sale, the
Seller also represents and warrants as follows:
a. There are no defaults under the Existing Mortgage and there shall be
none at the time of the closing. Excluded from the representation and warrant
contained herein is the transfer of title of the Property from Xxxxxxx Xxxxxxx
Company to MacQuesten Realty Company by deeds dated December 27, 1995.
b. The Seller shall deliver a pay off letter to the Purchaser at least
five (5) days prior to the closing date which shall indicate the principal
balance outstanding and to be assumed and all other amounts necessary to bring
the loan current.
8. Section 4.02 is amended by the addition of the following sentence at
the end thereof. "The copies of documents constituting the Existing Mortgage(s)
and note(s) secured thereby have been exhibited to Purchaser or its
representative and such
2
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copies are true copies are true copies of the originals and the Existing
Mortgage(s) and note(s) secured thereby have not been modified or amended except
as shown in such documents".
9. The Purchaser obligates itself to assume the existing mortgage on
the premises. The Term Loan Note provides for the payment of a premium to the
Lender in the event of prepayment of the mortgage. In the event that the
Purchaser shall fail to assume the existing mortgage on the premises, any
premium due to First Union Bank, the successor to FFB, as a result of the
prepayment of the mortgage shall be the obligation of Purchaser and the amount
of said premium shall be paid by the Purchaser to the Seller at the time of the
closing.
10. Purchaser has conducted an environmental investigation of the
Premises and has taken such tests and/or samples, including without limitation,
soil and ground water samples which the Purchaser believes is necessary to
evaluate the environmental condition of the Premises. Seller makes no
representation regarding the present condition of the Premises, past uses of the
Premises by the Seller or by any previous owner or lessee of the Premises, or
compliance with any federal, state or local law, ordinance or regulation
relating to the protection of health or the environment ("Environmental Law").
It is the sole responsibility under this Agreement of the Purchaser to determine
the environmental condition of the Premises. Nothing in this paragraph shall be
construed as altering the common law or statutory rights or liabilities of
Seller or Purchaser as against the other or any third party provided, however,
that neither Seller or its principals, shall be liable to the Purchaser for (i)
the act of making material omissions or (ii) the act of failing to disclose with
the respect to (a) the present environmental condition of the Premises, (b) past
usages of the Premises by the Seller or by any previous owner or lessee of the
Premises, or (c) the Seller's compliance with any Environmental Law.
"Adverse environmental condition" is defined as:
(1) the actual or potential contamination of the soil, air or water
(whether surface water or ground water) on or about the Premises by hazardous,
toxic, dangerous, or restricted, substances, wastes, products or materials
("Hazardous Substances");
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(2) the presence of Hazardous Substances which are stored upon the
subject premises, except where such Hazardous Substances are used, produced,
and/or stored at the Property in the ordinary course of business at the Property
in full compliance with Environmental Law.
11. Section 1.01(a) is amended by the insertion after the word "hereto"
on the fourth line of the words "and all air rights and other rights with
respect hereto to the extent owned by Seller".
12. Sections 5.01 and 5.02 are amended by the insertion of the
following words at the beginning of each paragraph "Other than as set forth
herein and in the riders attached hereto,.."
13. Section 11.04 is amended by the insertion of the following sentence
at the end thereof. "Purchaser shall at the closing pay the Mount Xxxxxx
Transfer Tax".
14. Schedule D, Item 9 - Assessed Valuation
60 Building: $120,000
70 Building: 122,000
70 Lot: 18,000
15. Schedule D, Item 10 - Real Estate Taxes
60 Building:
1999 City tax $20,025.
98/99 School tax was $35,900.
1999 State, County, Sewer tax $11,392.
70 Building:
1999 City tax $20,880.
98/99 School tax was $30,949.
1999 State, County, Sewer tax $ 9,493.
4
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70 Lot:
1999 City tax $ 3,081.
98/99 School tax was $ 5,571.
1999 State, County, Sewer tax $ 1,709.
5
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SCHEDULE F
1. Driveway Easement in Liber 5765 Page 259.
2. Affects part of Parcel 1, Drainage Easement to City of Mount Xxxxxx in
Liber 1923 Page 209
3. 78 inch Sewer Easement and Reservation to County in Liber 4726 Page 97.
