EXHIBIT 10(k)
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made as of the 1st day of June, 2007,
by and between 000 XXXXXX XXXXXX CORP., a New York Corporation ("Seller"), and
180 LINDEN REALTY, LLC, a New York limited liability company ("Purchaser").
WITNESSETH:
WHEREAS, the Seller is the owner of the Premises (this and other
capitalized terms used and not otherwise defined herein having the meaning as
described to such terms in Section 1); and
WHEREAS, the Purchaser desires to acquire the Premises from the Seller and
the Seller wishes to sell the Premises to the Purchaser, subject to and upon the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the Seller and the Purchaser
hereby agree as follows:
SECTION 1 DEFINITIONS. Capitalized terms used in this Agreement shall have the
meanings set forth below or in the Section of this Agreement referred to below:
1.1 "Agreement" shall mean this Purchase and Sale Agreement, together with
Schedules A through F attached hereto, as it and they may be amended
from time to time as herein provided.
1.2 "Business Day" shall mean any day other than a Saturday, Sunday or any
other day on which banking institutions in the State of New York are
authorized by law or executive action to close.
1.3 "Closing" shall have the meaning given such terms in Section 2.2.
1.4 "Closing Date" shall mean a day which is on or before thirty (30) days
after the expiration of the Review Period.
1.5 "Deposit" shall have the meaning given such term in Section 2.3.
1.6 "Escrow Agent" shall mean Seller's attorneys, a Title Company, or such
other person as shall be reasonably acceptable to the Purchaser and
the Seller.
1.7 "Lease" shall mean the lease, dated as of the Closing Date, by and
between Purchaser and Vasomedical, Inc. ("Vaso") in substantially the
form annexed hereto as Schedule B.
1.8 "Permitted Encumbrances" shall mean (a) applicable zoning regulations
and ordinances provided the same do not prohibit or impair in any
material respect the use of the Premises as currently operated and
constructed or as contemplated by this Agreement; (b) such other
non-monetary encumbrances with respect to such Premises which are not
objected to by the Purchaser in accordance with Sections 3.2 and 3.3.
1.9 "Premises" shall mean the following:
(a) The certain real property commonly known as 000 Xxxxxx Xxxxxx,
Xxxxxxx xx Xxxxxxxx, Xxxx of North Hempstead, County of Nassau,
State of New York, described on Schedule A attached hereto (the
"Real Property").
(b) All of Seller's rights, privileges and easements appurtenant to
the Real Property, including, without limitation, all mineral,
oil, gas and other hydrocarbon substances as well as all
development rights and air rights relating to the Real Property
and any easements, rights-of-way, strips, gores, or other
appurtenances used in connection with the beneficial use and
enjoyment of the Real Property.
(c) All improvements and fixtures located on the Real Property,
including all buildings and structures presently located on the
Real Property, all apparatus, equipment and appliances used in
connection with the operation of the Real Property, such as
heating and air conditioning systems and facilities used to
provide any utility services, refrigeration, ventilation or other
services on the Real Property (all of which are collectively
referred to as the "Improvements"), except any and all trade
fixtures owned by any of the Tenants, herein called the
"Vasomedical Assets."
(d) Any tangible personal property owned by Seller and located at the
Real Property and relating to the ownership, use and occupancy of
the Real Property and the Improvements (collectively, the
"Personal Property") except for any tangible personal property
used by Seller in the conduct of its business, herein called the
"Vaso Personal Property."
(e) Any intangible personal property owned by Seller and relating to
the ownership, use and occupancy of the Real Property and the
Improvements, including without limitation, any permits,
approvals and warranties with respect to the Improvements or
Personal Property (collectively, the "Intangibles"), except for
any intangible property user by Seller in the conduct of its
business, herein called the "Vaso Intangibles".
1.10 "Purchase Price" shall have the meaning given such term in Section 2.3
1.
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1.11 "Review Period" shall mean that period commencing on the date of this
Agreement and expiring sixty (60) days thereafter.
1.12 "Survey" shall have the meaning given such term in Section 3.3.
1.13 "Tenants" shall mean any person or entity using or occupying all or
any portion of the Premises pursuant to any Lease or any other lease,
license or agreement to which the Landlord has actual knowledge and
consented thereto.
1.14 "Title Commitment" shall have the meaning given such term in Section
3.2.
1.15 "Title Company" shall mean such title insurance agency as may be
selected by Purchaser and licensed to sell title insurance in the
State of New York.
1.16 "Effective Date" shall mean the first business day after the date that
Purchaser receives from Seller a fully executed copy of this
Agreement.
SECTION 2 PURCHASE AND SALE; CLOSING.
2.1 Purchase and Sale. In consideration of the payment of the Purchase
Price by the Purchaser to the Seller and for other good and valuable
consideration, the Seller hereby agrees to sell to the Purchaser, and
the Purchaser hereby agrees to purchase from the Seller, the Premises,
subject to and in accordance with the terms and conditions of this
Agreement.
2.2 Closing. The purchase and sale of the Premises shall be held either at
the office of Seller's counsel through an in person at a closing
("Closing") to or held at the offices of Purchaser's Lender or
Lender's attorneys, or at such other location as the Seller and the
Purchaser may reasonably agree, at 10:00, local time, on the Closing
Date.
2.3 Purchase Price.
(a) The purchase price to be paid for the Premises (the "Purchase
Price") shall be One Million, Four Hundred Thousand Dollars and
00/100 ($1,400,000). The Purchase Price shall be paid as follows:
(i) Within five (5) business days after the effective date of
this Agreement, the Purchaser shall deposit with the Escrow Agent
the sum of Seventy Thousand Dollars and 00/100 ($70,000) (such
amount, together with all interest earned thereon, the
"Deposit"); and
(ii) The Purchase Price, less the Deposit and subject to
adjustment as provided in Article 9, shall be paid by the
Purchaser to or at the direction of the Seller at the Closing.
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(b) The Purchase Price shall be payable in immediately available
federal funds by New York Clearing House bank checks or by wire
transfer to an account or accounts to be designated by the
Seller.
2.4 Duties of Escrow Agent.
(a) The Escrow Agent shall hold the Deposit in an interest-bearing
account and shall pay the Deposit to the party entitled thereto
in accordance with the terms of this Agreement; provided however,
Escrow Account shall not pay any portion of the Deposit or all of
the Deposit to either party without the written consent of the
other party.
(b) The acceptance by the Escrow Agent of its duties as such under
this Agreement is subject to the following terms and conditions,
which all parties to this Agreement hereby agree shall govern and
control with respect to the rights, duties, liabilities and
immunities of the Escrow Agent:
(i) The Escrow Agent acts hereunder as a depository only, and is
not responsible or liable in any manner whatever for the
sufficiency of any amounts deposited with it.
(ii) The Escrow Agent shall not be liable for acting upon any
notice, request, waiver, consent, receipt of other
instrument or document which the Escrow Agent in good faith
believes to be genuine and what it purports to be.
(iii) The Escrow Agent shall not be liable for any error in
judgment, or for any act done or step taken or omitted by it
in good faith, or for any mistake of fact or law, of for
anything which it may do or refrain from doing in connection
herewith, except its own bad faith, gross negligence or
willful misconduct.
(iv) The Escrow Agent may consult with, and obtain advice from,
legal counsel in the event of any dispute or question as to
the construction of any of the provisions hereof or its
duties hereunder, and it shall incur no liability and shall
be fully protected in acting in good faith in accordance
with the opinion and advice of such counsel.
(v) In the performance of its duties hereunder, the Escrow Agent
shall be entitled to rely upon any document, instrument or
signature believed by it to be genuine and signed by either
of the other parties hereto or their successors.
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(vi) The Escrow Agent may assume that any person purporting to
give any notice of instructions in accordance with the
provisions hereof has been duly authorized to do so.
(vii) The Seller and the Purchaser hereby release the Escrow
Agent from any act done or omitted to be done by the Escrow
Agent in good faith in the performance of its duties
hereunder.
(c) The Seller and the Purchaser may, but only upon mutual consent,
remove the Escrow Agent at any time upon not less than five (5)
days notice to the Escrow Agent; in such case, the Seller, by
notice to the Purchaser, shall appoint a successor Escrow Agent,
reasonably satisfactory to the Purchaser, which shall accept such
appointment and agree in writing to be bound by the terms of this
Agreement. In the event no successor Escrow Agent is appointed
and acting hereunder within five (5) days after resignation by
the Escrow Agent or there is a dispute among the parties with
respect to payment of the Deposit, the Escrow Agent shall pay and
deliver the Deposit into a court of competent jurisdiction. Upon
delivery of the Deposit to a successor agent or court of
competent jurisdiction, the Escrow Agent shall be released and
discharged from all further obligations hereunder.
(d) The Escrow Agent agrees to serve without compensation for its
services; provided, however, that the Purchaser and the Seller
hereby agree to reimburse, or to advance to, the Escrow Agent all
reasonable expenses of the Escrow Agent incurred in the
performance of its duties hereunder.
SECTION 3 DILIGENCE, ETC.
3.1 Due Diligence.
(a) From and after the date of this Agreement, the Seller shall
permit the Purchaser and its representatives to inspect the
Premises (including, without limitation, all roofs, electric,
mechanical and structural elements, and HVAC systems), to perform
due diligence, soil analysis and environmental investigations, to
examine the records of the Seller with respect to the Premises,
and make copies thereof, at such reasonable times as the
Purchaser or its representatives may request. Any such
inspections shall be performed in a manner consistent with this
Agreement and shall be performed in such a manner to minimize any
interference with the use of the Premises by Vaso. The Purchaser
shall provide the Seller with copies of all written reports
prepared by third party consultants with respect to the Premises.
The Purchaser and its employees, agents and representatives
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shall, until Closing, keep all such information, sampling, test
results and reports confidential, provided, however, that
Purchaser, its agents and representatives may disclose such
information and data (i) to Purchaser's employees, accountants,
attorneys, prospective lenders, investment bankers, underwriters,
rating agencies, partners, consultants and other advisors in
connection with the transactions contemplated by this Agreement
(collectively, "Representatives") to the extent that such
Representatives reasonably need to know such information and data
in order to assist, and perform services on behalf of, Purchaser;
(ii) to the extent required by any applicable statute, law,
regulation or governmental authority; (iii) in connection with
any litigation that may arise between the parties in connection
with the transactions contemplated by this Agreement, and (iv) to
any prospective transferee or assignee of Purchaser.
Notwithstanding the prior sentence, information that is or
becomes publicly available or is obtained by or furnished to
Purchaser on a non-confidential basis shall not be subject to
this provision. To the extent that the Purchaser damages or
disturbs the Premises, the Purchaser shall, to the extent
practicable, return the same to substantially the same condition
which existed immediately prior to such damage or disturbance.
The Purchaser shall indemnify, defend and hold harmless the
Seller from and against any and all expense, loss or damage which
the Seller may incur as a result of any act or omission of the
Purchaser or its representatives, agents or contractors, other
than any expense, loss or damage to the extent arising from any
act or omission of the Seller during any such inspection. Such
indemnification agreement shall survive the termination of this
Agreement.
(b) On or before the Effective Date, Seller shall deliver to
Purchaser true and correct copies of all Contracts, affecting the
Premises, as well as the current Certificate of Occupancy,
Seller's most recent title insurance policy and survey, any
environmental and engineering reports in Seller's possession, the
most recent two years' real estate tax bills, and Vaso's most
recent three years' financial statements.
3.2 Title Matters.
(a) New Title Commitment. Promptly following the execution of this
Agreement, Purchaser shall order a new title commitment with
respect to the Premises (the "Title Commitment"), and Purchaser
may also order a new survey of the Premises (the "Survey").
(b) Notice of Objection; Seller's Response. If the Title Commitment
or Survey contain exceptions which are not acceptable to
Purchaser or there are exceptions to title that appear or are
created after the effective date of the title commitment
("Unpermitted Exceptions"), Purchaser shall, at least five (5)
days prior to the expiration of the Review Period (or, with
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respect to any exceptions to title that appear or are created
after the effective date of the title commitment, five (5) days
after Purchaser receives notice of such exceptions), deliver to
Seller written notice of Purchaser's objections (a "Notice of
Objection"), if any, to such exceptions. Any exceptions to which
Purchaser does not so object within the aforesaid time periods
are referred to as "Permitted Exceptions". If Purchaser fails to
deliver a Notice of Objection to Seller within the aforesaid time
periods, Purchaser shall be deemed to have waived its right to
object to any exceptions which would otherwise be Unpermitted
Exceptions, and such exceptions shall thereafter be deemed
Permitted Exceptions. Notwithstanding the foregoing, on or before
the Closing Seller shall pay and satisfy all mortgages, federal
tax liens, mechanic's liens and other encumbrances that can be
satisfied by the payment of money, and any exceptions to title
that have been created or consented to by Seller after the
Effective Date, same shall under no circumstances be considered
Permitted Exceptions, and same shall not be the subject of a
Response Notice under subsection (c) below.
(c) Notice Period. Within ten (10) days following the date of receipt
of a Notice of Objection (the "Seller Notice Period") from
Purchaser, Seller shall give notice (a "Response Notice")
advising Purchaser that either (a) Seller will cause the
Unpermitted Exceptions to be removed from the Title Commitment at
or prior to Closing, or (b) Seller does not agree to cause the
Unpermitted Exceptions to be removed from the Title Commitment at
or prior to Closing. If Seller fails to give the Response Notice
during the Seller Notice Period, Seller shall be deemed to have
not agreed to cause all Unpermitted Exceptions to be removed from
the Title Commitment at or prior to Closing.
(d) Title Termination Notice. If, pursuant to Subsection 3.2(c) of
this Agreement, Seller notifies Purchaser that Seller does not
agree to cause the Unpermitted Exceptions to be removed from the
Title Commitment or is deemed to have not agreed to do so,
Purchaser may terminate this Agreement by giving notice in
writing to Seller (the "Title Termination Notice") within ten
(10) days following Purchaser's receipt of the Response Notice,
or if Seller does not provide a Response Notice, within twenty
(20) days following the expiration of the Seller Notice Period.
If Purchaser gives a Title Termination Notice, this Agreement
shall terminate and Escrow Agent shall promptly return the
Deposit to Purchaser. If Purchaser does not give a Title
Termination Notice within the period set forth in this
Subsection, the Unpermitted Exceptions will thereafter be deemed
Permitted Exceptions, and this Agreement shall remain in full
force and effect.
3.3 Other Diligence Materials. Throughout the Review Period and through
and until the Closing, the Seller shall permit the Purchaser and its
representatives to review and examine all environmental assessment
reports, building evaluations, financial data and other investigations
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and materials pertaining to the Premises as are in the possession of
the Seller and shall permit the Purchaser, at its sole cost and
expense, to make copies of any such materials as the Purchaser or its
representatives may request.
3.4 Termination of Agreement. If the results of the inspections performed
by or on behalf of the Purchaser pursuant to Section 3 shall be
unsatisfactory to the Purchaser, in Purchaser's sole determination,
the Purchaser shall have the right to terminate this Agreement at any
time prior to the expiration of the Review Period by the giving of
written notice thereof to the Seller and upon such termination Escrow
Agent shall promptly return the Deposit to Purchaser. In the event
that the Purchaser shall fail so to terminate this Agreement, the
Purchaser shall have no further right to terminate this Agreement
pursuant to this Section 3.4 and the Deposit shall thereafter be
nonrefundable to the Purchaser, except as otherwise provided in
Sections 4.4, 8.4, 8.5 and 10.1.
SECTION 4 CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. The obligation of the
Purchaser to acquire the Premises on the Closing Date shall be subject to the
satisfaction of the following conditions precedent on and as of such Closing
Date:
4.1 Closing Documents. The Seller shall have delivered to the Purchaser
the following:
(a) A Bargain and Sale Deed with covenants against grantor's acts in
proper form for recording, duly executed and acknowledged by the
Seller, conveying good and marketable title to such Premises,
free from all liens and encumbrances other than the Permitted
Encumbrances;
(b) The Lease, duly executed and acknowledged by Vaso, and a
termination of any other lease under which Vaso or any other
tenant occupies the Premises;
(c) An assignment by the Seller and an assumption by the Purchaser,
in the form attached hereto as Schedule C, duly executed and
acknowledged by the Seller and the Purchaser, of all of the
Seller's right, title, and interest in, to and under all of the
Intangibles;
(d) A xxxx of sale, in the form attached hereto as Schedule D, with
respect to all of the Personal Property, on an "as is, where is"
condition with "all faults" (it being understood and agreed that
no portion of the Purchase Price is allocated to the Personal
Property);
(e) To the extent the same are in the Seller's possession, original,
fully executed copies of all material documents and agreements,
warranties and guarantees, or letters of credit from Tenants, if
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any, plans and specifications, certificates of occupancy, and
other governmental licenses and permits pertaining to the
Premises;
(f) An assignment by Seller and an assumption by the Purchaser in the
form attached hereto as Schedule E, duly executed and
acknowledged by the Seller and the Purchaser of all Seller's
right, title and interest in, to and under the Contracts that are
being assigned to and assumed by Purchaser in accordance with the
terms hereof, together with true, correct and complete copies of
the Contracts being assumed by Purchaser;
(g) A certification, duly executed and acknowledged by Seller, in the
form attached hereto as Schedule F that Seller is not a foreign
person within the meaning of Section 1445 of the United States
Revenue Code of 1986, as amended;
(h) Such other conveyance documents, certificate, deeds, tax returns
and other instruments as the Purchaser, the Seller or the Title
Company may reasonably require and as are customary in like
transactions in the greater New York area;
(i) A certificate confirming that all of Seller's representations and
warranties to the Purchaser are true and correct on the Closing
Date; and
(j) All keys and combinations to all locks on the Premises.
4.2 Condition of Premises, Etc.
(a) The Premises, including all Improvements located thereon, shall
be in substantially the same physical condition on the date of
this Agreement, ordinary wear and tear excepted;
(b) No action shall be pending or threatened for the condemnation or
taking by power of eminent domain of all or any material portion
of the Premises;
(c) All representations and warranties of the Seller herein shall be
true, correct and complete in all material respects on and as of
the Closing Date and the Seller shall have performed all material
covenants and obligations required to be performed by the Seller
as to the Premises on or before the Closing Date; and
(d) No material litigation shall have been instituted against Seller
which would prevent Seller from being able to convey the Premises
pursuant to this Agreement.
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4.3 Title Policies. The Title Company shall be prepared, subject only to
payment of the applicable premium and delivery of all conveyance
documents in recordable form, to issue a title insurance policy to the
Purchaser for the Premises, in form and substance satisfactory to the
Purchaser in accordance with Section 3.2, together with such
affirmative coverages as the Purchaser may reasonably require.
4.4 (a) Vaso shall not have (i) made an assignment for the benefit of
creditors, (ii) filed or acquiesced to a petition in any court
(whether or not pursuant to any statute of the United States or of any
state) in any bankruptcy, reorganization, composition, extension,
arrangement or insolvency proceedings, or (iii) made an application in
any such proceedings for or acquiesce to the appointment of a trustee
or receiver for it or all of any portion of its property; (b) no
petition shall be filed against Vaso in any bankruptcy,
reorganization, composition, extension, arrangement or insolvency
proceedings; or (c) no proceeding shall have been filed against Vaso
seeking the appointment of a receiver or trustee for Vaso, or for all
or any portion of the property of Vaso.
4.5 If Conditions Not Satisfied. If by the Closing Date the conditions to
Closing set forth in this Section 4 have not been satisfied or waived
in writing by Purchaser, then Purchaser shall have the right to (i)
waive the unsatisfied condition, (ii) postpone Closing for a
reasonable period of time (but not more than thirty (30) days) to
allow Seller additional time to satisfy the conditions, or (iii)
terminate this Agreement by notice to Seller and Escrow Agent, and
upon such termination Escrow Agent shall promptly return the Deposit
to Purchaser.
SECTION 5 CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The obligation of the
Seller to convey the Premises on the Closing Date to the Purchaser is subject to
the satisfaction of the following conditions precedent on and as of such Closing
Date:
5.1 Purchase Price. The Purchaser shall deliver to the Seller the Purchase
Price payable hereunder, adjusted as herein provided.
5.2 Closing Documents. The Purchaser shall have delivered to the Seller
duly executed and acknowledged counterparts of the documents described
in Section 4.1, where applicable.
5.3 Representations and Warranties. The representations and warranties of
the Purchaser in this Agreement shall be true, correct and complete in
all material respects on as of such Closing Date and the Purchaser
shall have performed all covenants and obligations required to be
performed by the Purchaser prior to such Closing Date.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce the Purchaser to
enter into this Agreement, the Seller represents and warrants to the Purchaser
as follows:
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6.1 Ownership and Occupancy. The Seller holds fee title to the Premises.
Other than Vaso, the Premises has no tenants or occupants.
6.2 Status and Authority of the Seller. The Seller is a corporation
organized, validly existing and in good standing under the laws of its
state of formation, and has all requisite power and authority to enter
into and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby.
6.3 Action of the Seller. The Seller has taken all necessary action to
authorize the execution, delivery and performance of this Agreement,
and upon the execution and delivery of any document to be delivered by
the Seller on or prior to the Closing Date, such document shall
constitute the valid and binding obligation and agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
affecting the rights and remedies of creditors.
6.4 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by the Seller, nor compliance with the
terms and provisions hereof, will result in any breach of the terms,
conditions or provisions of, or conflict with or constitute a default
under, or result in the creation of any lien, charge or encumbrance
upon the Premises pursuant to the terms of any indenture, mortgage,
deed of trust, note, evidence of indebtedness, lease or any other
agreement or instrument by which any of the Seller is bound.
6.5 Litigation. The Seller has received no written notice of and, to the
best of Seller's knowledge, no action or proceeding is pending or
threatened and no investigation looking toward such an action or
proceeding has begun, which questions the validity of the Agreement or
any action taken or to be taken pursuant hereto, will result in any
material adverse change in the business, operation, affairs or
condition of Seller or the Premises, result in or subject the Premises
to a material liability, or involves condemnation or eminent domain
proceedings against any part of the Premises.
6.6 Not a Foreign Person . The Seller is not a "foreign person" within the
meaning of Section 1445 of the United States Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
6.7 No Other Agreements. Seller warrants that no person or entity has any
option or other right to purchase or lease the Premises or any part of
the Premises.
6.8 No Condemnation. To the best of Seller's knowledge, there is no
pending condemnation, expropriation, eminent domain, or similar
proceeding affecting all or any portion of the Premises. Seller has
not received any written or oral notice of any of the same and has no
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knowledge that any such proceeding is contemplated.
6.9 Contracts. As of the Closing Date, there shall be no construction,
management, utility, leasing, service, equipment, supply, maintenance
or concession agreements (oral or written, formal or informal) with
respect to or affecting all or any portion of the Premises except as
set forth in Schedule G (the "Contracts"). Each Contract is valid and
subsisting and all amounts due thereunder have been paid. To the best
of Seller's knowledge, neither Seller, nor any of its agents is in
default under any Contract or has received any notice from any party
to any Contract claiming the existence of any default or breach
hereunder and no event or omission has occurred which, with the giving
of notice or the lapse of time would constitute a default. Except as
disclosed on Schedule G, all Contracts are terminable without cause on
thirty (30) days' notice or less without payment of any penalty or
termination payment. Except as to Contracts that Purchaser notifies
Seller to continue, each of which shall be assigned to Purchaser at
Closing (the "Assigned Contracts"), such notice to be in writing and
given to Seller no later than fifteen (15) days prior to Closing, all
parties to such agreements will be notified prior to Closing that
their agreements will be subject to termination as of Closing.
6.10 Employees. There are no persons employed or engaged by Seller in
connection with the management, operation or maintenance of all or any
portion of the Premises except as set forth in the Contracts, or
except as employed on an at will basis.
6.11 Permits. Seller will deliver to Purchaser, within one (1) business day
following the Effective Date, copies of all permanent certificates of
occupancy and all other licenses, permits, authorizations, consents,
approvals and other grants of authority (the "Permits") issued by all
governmental or quasi-governmental authorities having jurisdiction,
and certificates of the local board of fire underwriters (or other
body exercising similar functions), if any, have been issued for the
Premises which are in its possession. Seller has not received, and to
the best of Seller's knowledge none of the Permits are subject to any
notice of violation or penalty.
6.12 Compliance. To the best of Seller's knowledge: (a) no variance,
special use permits or special exceptions were issued for the
construction or present use of the Premises; and (b) the continued
maintenance, operation and use of any buildings, structures or other
improvements on the Premises for their respective present purposes
does not violate any federal, state, county or municipal laws,
ordinances, orders, codes, regulations or requirements affecting all
or any portion of the Premises, including, without limitation,
violations of the housing, building, safety, health, environmental,
fire or zoning ordinances, codes and regulations of the respective
jurisdictions within which the Premises is located (collectively,
"Applicable Laws") or the certificate(s) of occupancy issued for the
Premises. Seller has received no notices of requests, violations,
orders, claims, citations, penalty assessments, orders, investigations
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or proceedings under any Applicable Laws. Seller shall cure or comply
with, prior to Closing or as soon thereafter as reasonably practical,
any violation or notice of which Seller or Purchaser receives written
notice prior to the Closing from any of the foregoing governmental,
quasi-governmental or nongovernmental authorities.
6.13 Taxes. All state, township, county, school district and other taxes
levied or assessed against the Premises and any penalties or interest
due and payable thereon prior to Closing, and all assessments of any
kind levied prior to Closing, if any, will have been paid in full by
Seller and all appropriate tax returns relating to the same have been
filed with the proper authorities. Seller has no notice of any
proposed increase in the assessed valuation of the Premises. There is
no proceeding pending for the reduction of the assessed valuation of
all or any portion of the Premises. No portion of the Premises is
subject to or is affected by any special assessment whether or not
there is presently a lien thereon and, to the best of Seller's
knowledge, no such assessment has been proposed.
6.14 Insurance. Each insurance policy maintained by Seller with respect to
the Premises is in full force and effect and all premiums due
thereunder have been paid. No notice has been received from the
insurance company which issued any of such policies, or from any
agent, stating in effect that such policy will not be renewed or will
be renewed at a higher premium than is presently payable therefor, nor
is Seller aware, of defects or inadequacies in the Premises which if
not corrected would result in termination of insurance coverage or
increase in the cost thereof.
6.15 Environmental Matters. To the best of Seller's knowledge, no
polluting, toxic or hazardous substances were used, generated,
treated, stored, released, discharged or disposed of by the businesses
conducted on the Premises by the Seller or, to the best of Seller's
knowledge, by others, at any time. No notification of release of a
"hazardous substance" or "hazardous waste" as such terms are defined
in and pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.,
("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., or the federal Clean Water Act (33 U.S.C.
Section 1251 et seq.), or any state or local environmental law,
regulation or ordinance has been received by Seller and, to the best
of Seller's knowledge, none has been filed as to the Premises, and the
Premises is not listed or formally proposed for listing on the
National Priority List promulgated pursuant to CERCLA or on any state
list of hazardous substance sites requiring investigation or clean-up.
No PCB-contaminated, friable asbestos or formaldehyde-based insulation
items are present at the Premises. To the best of Seller's knowledge,
no activities or occurrences are taking place or have taken place at
the Premises which might give rise to any basis for any of the
foregoing. In the event that Purchaser's environmental investigations
show the existence or potential existence of "hazardous substance" or
"hazardous waste" at the Premises in violation of any of the above
laws, regulations or ordinances, and same can be remediated for less
than $25,000, Seller shall remediate same in accordance with the
13
applicable laws, regulations or ordinances prior to Closing.
6.16 Utilities. All water, sewer, gas, electric, telephone, and other
public utilities and all storm water drainage required by law or
necessary for the operation of the Premises (i) either enter the
Premises through open public streets adjoining the Premises, or, if
they pass through adjoining private land, do so in accordance with
valid public or private easements or rights of way which will inure to
the benefit of Purchaser, (ii) are installed, connected and operating,
in good condition, with all installation and connection charges paid
in full, including, without limitation, connection and the permanent
right to discharge sanitary waste into the collector system of the
appropriate sewer authority, and (iii) are adequate to service the
Premises as an office building. No moratorium, proceeding or other
fact or condition exists which threatens to impair continued
furnishing of such services to the Premises at regular rates and fees.
Water and sanitary sewer services are provide to the Premises via
publicly operated and maintained sewer and water systems.
6.17 No Flood Hazard Area. No portion of the Premises is located in an area
designated by any governmental entity as a flood hazard area.
6.18 Financial Information. The financial statements, if any, provided to
Purchaser by Seller are current, correct and complete, and fairly
present the financial condition of the Premises and Vaso for the
periods covered thereby. There has been no material adverse change in
the operation of the Premises or Vaso since the effective date of the
Financial Statements. All of the financial and operating statements
for the Premises and Vaso are kept and maintained at the Seller's
address identified above, and no statements affecting or relating to
the Premises or Vaso which are to be delivered to Purchaser have been
withheld.
6.19 Mechanics' Liens. No work has been performed or is in progress at, and
no materials have been furnished to, the Premises which, though not
presently the subject of, might give rise to, mechanics', material
suppliers', or other liens against the Premises or any portion
thereof. If any lien for such work is filed before or after Closing
hereunder, Seller shall promptly discharge the same at its cost.
6.20 Accuracy. No representation or warranty by Seller contained herein,
and no statement or other information contained in any Schedule,
certificate or other instrument furnished or to be furnished to
Purchaser pursuant hereto or in connection with the transactions
contemplated hereunder contains, or at the Closing shall contain, any
knowingly untrue statement of a material fact or intentionally omits
or shall intentionally omit to state a material fact necessary to make
it not misleading.
The representations and warranties made in this Agreement by the
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Seller shall survive Closing for a period of one (1) year.
Except as otherwise expressly provided in this Agreement or in any
other documents previously provided, or hereafter provided, by or on
behalf of Seller to Purchaser, the Seller disclaims the making of any
representations or warranties, express or implied, regarding the
Premises or matters affecting the Premises, whether made by the
Seller, on the Seller's behalf or otherwise, including, without
limitation, the physical condition of the Premises, title to or the
boundaries of the Real Property, pest control matters, soil
conditions, the presence, existence or absence of hazardous wastes,
toxic substances or other environmental matters, compliance with
building, health, safety, land use and zoning laws, regulations and
orders, structural and other engineering characteristics, traffic
patterns, market data, economic conditions or projections, and any
other information pertaining to the Premises. The Purchaser
acknowledges (i) that the Purchaser has entered into this Agreement
with the intention of making and relying upon its own investigation or
that of third parties with respect to the physical, environmental,
economic and legal condition of the Premises and (ii) that the
Purchaser is not relying upon any statements, representations or
warranties of any kind, other than those specifically set forth in
this Agreement or in any document to be delivered to the Purchaser at
the Closing made (or purported to be made) by the Seller or anyone
acting or claiming to act on the Seller's behalf. The Purchaser
further acknowledges that it has not received from or on behalf of the
Seller any accounting, tax, legal, architectural, engineering,
property management or other advice with respect to this transaction
and is relying solely upon the advice of third party accounting, tax,
legal, architectural, engineering, property management and other
advisors, Subject to the provisions of this Agreement, the Purchaser
shall purchase the Premises in its "as is" condition and "with all
faults" on the Closing Date.
SECTION 7 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce the
Seller to enter in this Agreement, the Purchaser represents and
warrants to the Seller as follows:
7.1 Status and Authority of the Purchaser. The Purchaser is a limited
liability company duly organized, validly existing under the laws of
the State of New York and has all requisite power and authority under
the laws of such state under its formation documents to enter into and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The Purchaser has duly qualified and
is in good standing as a limited liability company in each
jurisdiction in which the nature of the business conducted by it
requires such qualification.
7.2 Action of the Purchaser. The Purchaser has taken all necessary action
to authorize the execution, delivery and performance of this
Agreement, and upon the execution and delivery of any document to be
delivered by the Purchaser on or prior to the Closing Date such
document shall constitute the valid binding obligation and agreement
15
of the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
7.3 No Violations of Agreements. Neither the execution, delivery or
performance of this Agreement by the Purchaser, nor compliance with
the terms and provisions hereof, will result in any breach of the
terms, conditions or provisions of, or conflict with or constitute a
default under, or result in the creation of any lien, charge or
encumbrance upon any property or assets of the Purchaser pursuant to
the terms of any indenture, mortgage, deed of trust, note, evidence of
indebtedness or any other agreement or instrument by which the
Purchaser is bound.
7.4 Litigation. No investigation, action or proceeding is pending and, to
the Purchaser's actual knowledge, no action or proceeding is
threatened and no investigation looking toward such an action or
proceeding has begun, which questions the validity of this Agreement
or any action taken or to be taken pursuant hereto.
The representations and warranties made in this Agreement by the
Purchaser shall survive Closing for a period of one (1) year.
SECTION 8 COVENANTS OF THE SELLER. The Seller hereby covenants with
the Purchaser between the date of this Agreement and the Closing Date
as follows:
8.1 Approval of Agreements. Except as otherwise authorized by this
Agreement, not to enter into, modify, amend or terminate the Contracts
or any other agreement with respect to the Premises which would
encumber or be binding upon the Purchaser from and after the Closing
Date without in each instance obtaining the prior written consent of
the Purchaser, which consent may be withheld in Purchaser's sole
discretion.
8.2 Operation of Premises. To continue to operate the Premises as
currently operated in a good and businesslike fashion consistent with
its past practices and to cause the Premises to be maintained in good
working order and condition in a manner consistent with its past
practices.
8.3 Maintenance. Prior to Closing, Seller shall (i) maintain property and
liability insurance policies as currently in effect through the
Closing Date, (ii) correct any violations of any Applicable Laws of
which Seller receives notice prior to Closing, (iii) notify the
Purchaser of any change in condition with respect to the Premises,
including any casualty or condemnation, and (iv) perform all routine
maintenance necessary to maintain the Premises in its current
condition, and repair any damage to the Premises caused by casualty or
condemnation.
8.4 Casualties. If, between the Effective Date and the Closing, any
material portion of any Premises is damaged or destroyed by fire or
other casualty, the repair and restoration of which will cost less
16
than $50,000 (the "Threshold"), the Purchaser shall purchase the
Premises at Closing, whereupon the Seller shall assign to Purchaser
any insurance proceeds to which Seller may be entitled as a result of
such damage, destruction, casualty or loss to the Premises, and
Purchaser shall receive a credit against the Purchase Price in the
amount of the applicable deductible (unless previously paid by such
Seller toward the cost of restoration). If, however, such cost will
exceed the Threshold, Purchaser shall have the option, exercisable by
notice to Seller within five (5) days after Purchaser receives notice
from Seller of such casualty, to either: (a) elect not to purchase the
Premises, whereupon the Deposit shall be returned to Purchaser and
thereafter this Agreement shall be deemed terminated, or (b) elect to
purchase the Premises, whereupon the Seller shall assign to Purchaser
any insurance proceeds to which such Seller may be entitled as a
result of such damage, destruction, casualty or loss to the Premises,
and Purchaser shall receive a credit against the Purchase Price in the
amount of the applicable deductible (unless previously paid by Seller
toward the cost of restoration). Notwithstanding the foregoing,
Purchaser cannot terminate if Seller restores Premises (and notifies
Purchaser that Seller elects to restore) within ninety (90) days of
the casualty, and the Closing shall occur within a reasonable time
after the completion of the restoration, as evidenced by the issuance
of a Certificate of Occupancy or Certificate of Completion for the
restoration work or earlier, at Purchaser's sole option.
8.5 Condemnation. If, between the Effective Date and the Closing, a
portion of the Premises which (a) is less than the Threshold, (b) does
not affect access to the Premises, and (c) does not render the
Premises non-compliant with Applicable Laws, shall be taken by reason
of the exercise of the power of eminent domain, Purchaser shall
purchase the Premises and pay the full Purchase Price for the Premises
at Closing, whereupon the Seller shall assign to Purchaser all
damages, if any, to which Seller may be entitled and that may be
assigned by Seller pursuant to the applicable eminent domain law;
provided, however, that such taking that reduces or impairs parking,
the adequacy of utilities or ingress/egress, or zoning compliance,
shall be deemed to exceed the Threshold. If, between the Effective
Date and the Closing, a portion of the Premises (x) in excess of the
Threshold, (y) which affects access to the remainder of the Premises,
or (z) renders the Premises non-compliant with Applicable Laws, shall
be taken by reason of the exercise of the power of eminent domain,
Purchaser shall have the option, exercisable by notice to Seller
within five (5) days after Purchaser learns of such taking, to either
(a) elect not to purchase the Premises, whereupon the Deposit shall be
returned to Purchaser and thereafter this Agreement shall be deemed
terminated, or (b) elect to purchase the Premises and pay the full
Purchase Price at Closing, whereupon the Seller shall assign to
Purchaser all damages, if any, to which Seller may be entitled and
that may be assigned by Seller pursuant to the applicable eminent
domain law. Within five (5) days after notification of any such
taking, but in no event later than the Closing, Seller shall notify
Purchaser thereof.
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SECTION 9 APPORTIONMENTS.
9.1 Real Property Apportionments.
(a) The following items shall be apportioned at the Closing as of the
close of business on the day immediately preceding the Closing
Date:
(i) municipal assessments and governmental license and permit
fees;
(ii) real estate taxes and assessments other than special
assessments, based on the rated and assessed valuation
applicable in the fiscal year for which assessed;
(iii) water rates and charges; and
(iv) sewer taxes and rents.
If any of the foregoing cannot be apportioned at Closing because
of the unavailability of the amounts which are to be apportioned,
such items shall be apportioned on the basis of a good faith
estimate by the parties and reconciled as soon as practicable
after such Closing Date but, in any event, no later than one year
after such Closing Date.
(b) If any refunds of real property taxes or assessments, water rates
and charges or sewer taxes and rents shall be made after such
Closing, the same shall be held in trust by the Seller or the
Purchaser, as the case may be, and shall first be applied to the
unreimbursed costs incurred in obtaining the same, then to any
required refunds to the Tenants in accordance with the Leases,
and the balance, if any, shall be paid to the Seller (for the
period prior to such Closing Date) and to the Purchaser (for the
period commencing with such Closing Date).
(c) If, on the Closing Date, the Premises shall be or shall have been
affected by any special or general assessment or assessments or
real property taxes payable on a lump sum or which are or may
become payable in installments of which the first installment is
then a charge or lien and has become payable, the Seller shall
pay or cause to be paid at such Closing the unpaid installments
of such assessments due up to the Closing Date and the Purchaser
shall be responsible to pay all installments thereof which are to
become due and payable after such Closing Date.
(d) No insurance policies of the Seller are to be transferred to the
Purchaser, and no apportionment of the premiums therefore shall
be made.
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(e) If a net amount is owed by the Seller to the Purchaser pursuant
to this Section 9.1, such amount shall be credited against the
Purchase Price of the Premises. If a net amount is owed by the
Purchaser to the Seller pursuant to Section 9.1, such amount
shall be added to the Purchase Price.
9.2 Closing Costs. Seller shall pay New York State transfer taxes and
shall be responsible for any charges normally imposed on Seller.
Purchaser shall pay any charges normally imposed on Purchaser.
The obligations of the parties under this Section 9 shall survive
Closing.
SECTION 10 DEFAULT
10.1 Default by the Seller. If the Seller shall have made any
representation or warranty herein which shall be materially untrue or
misleading in any material respect, or if the Seller shall fail to
perform any of the covenants and agreements contained herein to be
performed by it and such failure continues for a period of ten (10)
days after notice thereof from the Purchaser, the Purchaser shall have
the right to (i) terminate this Agreement and receive the return of
the Deposit, unless Seller shall take steps to cure such default
within the ten (10) day period, but if not completed by said period,
such right to terminate shall extend until after a reasonable period
of time to cure has expired (and, in any event, hold cured such
default within thirty (30) days following such Notice from Purchaser),
or (ii) the Purchaser may pursue a suit for specific performance or
other equitable relief; provided, however, that in addition to the
aforesaid remedies, Purchaser shall be entitled to recover from Seller
reimbursement for all costs and expenses incurred by Purchaser in
connection with the negotiation of this Agreement, the performance of
due diligence, and fees payable to title companies, surveyors and
lenders with respect to the anticipated purchase of the Premises, in
the aggregate maximum amount of not more than $50,000.
10.2 Default by the Purchaser. If the Purchaser shall have made any
representation or warranty herein which shall be untrue or misleading
in any material respect, or if the Purchaser shall fail to perform any
of the covenants and agreements contained herein to be performed by it
and such failure shall continue for a period of ten (10) days after
notice thereof from the Seller, the Seller may terminate this
Agreement. The damages that the Seller would sustain as a result of
any such termination would be substantial but would be impracticable
and excessively costly and difficult to establish or ascertain and the
parties hereto agree that the Seller's sole remedy at law and in
equity, shall be to retain any unapplied portion of the Deposit as
liquidated damages and not as a penalty.
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SECTION 11 MISCELLANEOUS.
11.1 Brokers. The broker is Newmark of Long Island LLC d/b/a Newmark Knight
Xxxxx XX ("NKF"), and such firm shall be paid by Seller at closing
pursuant to a separate agreement. Each party shall indemnify, defend
and hold harmless the other party from and against any and all claims,
loss, costs and expenses, including reasonable counsel fees, resulting
from any claims that may be made against such party by any broker
claiming a commission by, through or under the other party.
11.2 Publicity. The parties agree that no party shall, with respect to this
Agreement and the transactions contemplated hereby, contact or conduct
negotiations with public officials, make any public pronouncements,
issue press releases or otherwise furnish information regarding this
Agreement or the transactions herein contemplated to any third party
without the consent of the other party, which consent shall not be
unreasonably withheld or delayed.
11.3 Notices.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under
this Agreement shall be deemed adequately given if in writing and
the same shall be delivered either in hand, by telecopier with
written confirmation of receipt, or by mail or Federal Express or
similar expedited commercial carrier, addressed to the recipient
of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges
prepaid (if by Federal Express or similar carrier). Notices,
demands and other communications may be sent by the attorneys for
the parties hereto with the same force and effect as though sent
by the parties.
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon
the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or
refusal, except that whenever under this Agreement a notice is
either received on a day which is not a Business Day, the day of
receipt or required delivery shall be extended automatically to
the next Business Day.
(c) All such notices shall be addressed, if to the Seller:
000 Xxxxxx Xxxxxx Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX
Attn: Xxxxxx Xxxxxxxxxx
Facsimile: 000-000-0000
with a copy to:
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Xxxxxxx, Xxxxxxxxx & Xxxxxxxx, LLP
Suite 1313
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
if to the Purchaser:
180 Linden Realty LLC
0000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx, P.C.
0000 XxxXxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(d) By notice given as herein provided, the parties hereto and their
respective successor and assigns shall have the right from time
to time and at any time during the term of this Agreement to
change their respective addresses effective upon receipt by the
other parties of such notice and each shall have the right to
specify as its address any other address within the United States
of America.
11.4 Waivers, Etc. Any waiver of any term or condition of this Agreement,
or of the breach of any covenant, representation or warranty contained
herein, in any open instance, shall not operate as or be deemed to be
or construed as a further or continuing waiver of any other breach of
such term, condition, covenant, representation or warranty or any
other term, condition, covenant, representation or warranty, nor shall
any failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any manner
such party's right at a later time to enforce or require performance
of such provision or any other provision hereof at any time prior to
the Closing. This Agreement may not be amended, nor shall any waiver,
change, modification, consent or discharge be effected, except by an
instrument in writing executed by or on behalf of the party against
whom enforcement of any amendment, waiver, change, modification,
consent or discharge is sought.
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11.5 Assignment; Successors and Assigns.
(a) This Agreement and all rights and obligations hereunder shall not
be assignable by any party without the written consent of the
other parties, except that at Closing the Purchaser may assign
this Agreement or designate to receive title to the Premises to
any person or entity owned by or affiliated with the Purchaser.
No assignment (including any assignment permitted hereunder)
shall release the Purchaser named herein from any liability or
obligation under this Agreement.
(b) The Purchaser may elect to effect the Seller's transfer and
conveyance of the Premises as part of an exchanged under Section
1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), in lieu of purchasing such Premises. If the Purchaser so
elects, it shall provide notice to the Seller of such election,
and thereafter may at any time at or prior to the Closing assign
its rights (but such assignment shall not relieve the Purchaser
of its obligations) under this Agreement with respect to the
Premises to a "qualified intermediary" as defined in Treas. Reg.
1.1031(k)- 1(g)(4), subject to all rights and obligations
hereunder of the Seller and shall promptly provide written notice
of such assignment to the Seller. The Seller shall cooperate with
all reasonable requests of the Purchaser and the "qualified
intermediary" in arranging and effecting the transfer of the
Premises to the "qualified intermediary". Without limiting the
generality of the foregoing, if the Purchaser has given notice of
its intention to effect the acquisition of the Premises as part
of an exchange under Section 1031 of the Code, the Seller shall
(i) promptly provide the Purchaser with written acknowledgment of
such notice and (ii) at the Closing, transfer and convey the
Premises to the "qualified intermediary" rather than to the
Purchaser.
(c) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns. This Agreement
is not intended and shall not be construed to create any rights
in or to be enforceable in any part by any other persons.
11.6 Severability. If any provision of this Agreement shall be held or
deemed to be, or shall in fact be, invalid, inoperative or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflict of any provision with any constitution or statute or rule of
public policy or for any other reason, such circumstance shall not
have the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction or in
any other case or circumstance or of rendering any other provision or
provision herein contained invalid, inoperative or unenforceable to
the extent that such other provisions are not themselves actually in
22
conflict with such constitution, statute or rule of public policy, but
this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable
provision had never been contained herein and such provision reformed
so that it would be valid, operative and enforceable to the maximum
extent permitted in such jurisdiction or in such case.
11.7 Counterparts, Etc. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This
Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and shall supersede and take the
place of any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. This Agreement
may not be amended or modified in any respect other than by the
written agreement of all of the parties hereto.
11.8 Governing Law.
(a) This Agreement shall be interpreted, construed, applied and
enforced in accordance with the laws of the State of New York
applicable to contracts between residents of the State of New
York which are to be performed entirely within New York,
regardless of (i) where this Agreement is executed or delivered;
or (ii) where any payment or other performance required by this
Agreement is made or required to be made; or (iii) where any
breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other
proceeding is instituted or pending; or (v) the nationality,
citizenship, domicile, principal domestication of any party; or
(vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than the State of New
York; or (vii) any combination of the foregoing.
(b) To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the
provisions of this Agreement may be brought and prosecuted in
such court or courts located in the State of New York, County of
Nassau, as is provided by law; and the parties consent to the
jurisdiction of such court or courts located in the State of New
York, County of Nassau, and to service of process by registered
mail, return receipt requested, or by any other manner provided
by law.
11.9 Performance on Business Days. In the event the date on which
performance or payment of any obligation of a party required hereunder
is other than a Business Day, the time for payment or performance
shall automatically be extended to the first Business Day following
such date.
11.10 Attorney's Fees. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement
of this Agreement, the prevailing party therein shall be entitled to
receive from the other party the prevailing party s costs and
23
expenses, including reasonable attorneys fees incurred in connection
therewith, in preparation therefor and on appeal therefrom, which
amounts shall be included in any judgment therein.
11.11 Section and Other Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
11.12 Time is of the Essence. Time is of the essence with respect to each
and every obligation of the Seller and the Purchaser under this
Agreement.
11.13 No Recordation. The Seller and the Purchaser agree not to record this
Agreement or any memorandum hereof.
[Signatures lines are on the next succeeding page.]
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as a sealed instrument as of the date first above written.
SELLER:
000 XXXXXX XXXXXX CORP.
By: /s/
-----------------------------
Xxxx X. X. Xxx
PURCHASER:
180 LINDEN REALTY LLC
By: /s/
-----------------------------
Xxxxx Xxxxxx
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JOINDER
THE UNDERSIGNED ESCROW AGENT HEREBY ACKNOWLEDGES AND AGREES TO BE BOUND BY THE
PROVISIONS OF SECTION 2.4 OF THE FOREGOING AGREEMENT.
ESCROW AGENT:
XXXXXXX, XXXXXXXXX & XXXXXXXX, LLP
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Authorized Officer
26
