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EXHIBIT A
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CONTRACT OF SALE – OFFICE, COMMERCIAL AND MULTI-FAMILY RESIDENTIAL
PREMISES. This form was originally prepared by the Committee on Real Property Law of the
Association of the Bar of the City of New York. This form may have been altered by the user and
any such alterations may not be apparent. To view or download the original unaltered text of this
form and an introduction to this form, visit the Real Estate Forms site at the Reports/Publications/
Forms link at www.nycbar.org.
Contract of Sale – Office, Commercial and Multi-Family Residential Premises
Between
HELLO NOSTRAND LLC (“Seller”)
and
NOSTRAND ALBE LLC (“Purchaser”)
Dated:
December 20, 2021
Premises:
Street Address: 1580 Nostrand Avenue
a/k/a 2902 Albemarle Road
a/k/a 21 East 29th Street
City or Town: Brooklyn
County: Kings
State: New York
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CONTRACT OF SALE (“Contract”) dated December ___ 2021 between Hello
Nostrand LLC (“Seller”) and Nostrand Albe LLC (“Purchaser”).
Seller and Purchaser hereby covenant and agree as follows:
Section 1. Sale of Premises and Acceptable Title
§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; and (d) the appurtenances and all the estate and rights of Seller in and to the Land
and Building (collectively, the “Premises”). For purposes of this contract, “appurtenances”
shall include all right, title and interest of Seller, if any, in and to (i) streets, easements,
rights-of-way and vehicle parking rights used in connection with the Premises; (ii) any
strips or gores of land between the Land and abutting or adjacent properties; (iii) all
operating manuals and books, data and records regarding the Premises and its component
systems in Seller’s possession; (iv) all licenses, permits, certificates of occupancy and other
approvals issued by any state, federal or local authority relating to the use, maintenance or
operation of the Premises or the fixtures, machinery or equipment included in this sale to
the extent that they may be transferred or assigned; (v) all warranties or guaranties, if any,
applicable to the Premises, to the extent such warranties or guaranties are assignable; (vi)
all tradenames, trademarks, servicemarks, logos, copyrights and good will relating to or
used in connection with the operation of the Premises and (vii) air rights and development
rights. This sale also includes all trade fixtures and all equipment, machinery, materials,
supplies and other personal property attached or appurtenant to the Building or located at
and used in the operation or maintenance of the Land or Building to the extent same are
owned by Seller or any affiliate of Seller (the “Personal Property”). The street address of
the Premises is set forth on Schedule D attached hereto.
§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
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other matters as the title insurer specified in Schedule D attached hereto (or if none is so
specified, then any title insurer licensed to do business by the State of New York) shall be
willing to omit as exceptions to coverage or to except with insurance against collection out
of or enforcement against the Premises.
Section 2. Purchase Price, Acceptable Funds, Existing Mortgages, Purchase
Money Mortgage, Escrow of Downpayment and Foreign Persons
§2.01. Purchaser shall pay Seller the purchase price (“Purchase Price”) set forth in
Schedule C attached hereto, subject to the terms and conditions of this contract. Seller and
Purchaser acknowledge that no portion of the Purchase Price is allocated to the Personal
Property, if any, transferred pursuant to this contract.
§2.02. Except for the Downpayment (hereinafter defined), 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 loan to Purchaser drawn on any bank or trust company
having a banking office in the City of New York and which is a member of the New York
Clearing House Association or (b) official bank checks drawn by any such banking
institution, except that uncertified checks of Purchaser payable to the order of Seller up to
the amount of $2,500 shall be acceptable for sums payable to Seller at the Closing, or (c)
with respect to the portion of the Purchase Price payable at the Closing, at Seller’s election,
by wire transfer of immediately available federal funds to an account designated by Seller
not less than three business days prior to the Closing.
§2.03. Seller shall, upon request of Purchaser, use commercially reasonable efforts
to cause the holder(s) of the existing mortgage(s) encumbering the Premises to assign it
(them) to Purchaser’s lender at Closing, and to deliver to Purchaser’s lender the original
mortgage(s) and the original promissory note(s) secured thereby and Purchaser shall pay
any and all costs in connection therewith. The amount paid by Purchaser (or its lender) to
the holder(s) of such existing mortgage(s) as payment for the assignment of such
mortgage(s) shall be deemed a payment on account of the Purchase Price.
§2.04. (a) All sums paid on account of the Purchase Price prior to the Closing
(collectively, “Downpayment”) shall be paid by good check or checks drawn to the order
of and delivered to Seller’s attorney or another escrow agent designated in writing by the
parties (“Escrowee”). The Escrowee shall hold the proceeds thereof in escrow in a special
bank account at Bank of America, located at Riverdale, New York (or as otherwise agreed
in writing by Seller, Purchaser and Escrowee) until the Closing or sooner termination of
this contract and shall pay over or apply such proceeds in accordance with the terms of this
section. Escrowee shall hold such proceeds in an interest-bearing account, and such interest
shall be paid to the same party entitled to the Downpayment, and the party receiving such
interest shall pay any income taxes thereon. Escrowee shall not be responsible for any
interest on the Downpayment except as is actually earned, or for the loss of any interest
resulting from the withdrawal of the Downpayment prior to the date interest is posted
thereon or for any loss caused by the failure, suspension, bankruptcy or dissolution of the
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institution in which the Downpayment is deposited. The tax identification numbers of the
parties are set forth in Schedule D. Each of the parties, upon Escrowee’s request, shall
promptly furnish to Escrowee a completed and executed Form W-9, together with such
other information as Escrowee shall reasonably require. At the Closing, such proceeds and
the interest thereon, if any, shall be paid by Escrowee to Seller.
If for any reason the Closing does not occur and either party makes a written demand
upon Escrowee for payment of such amount, Escrowee shall give written notice to the other
party of such demand. If Escrowee does not receive a written objection from the other
party to the proposed payment within 10 business days after the giving of such notice,
Escrowee is hereby authorized to make such payment. If Escrowee does receive such
written objection within such 10 day period or if for any other reason Escrowee in good
faith shall elect not to make such payment, Escrowee shall continue to hold such amount
until otherwise directed by written instructions from the parties to this contract or a final
and non-appealable judgment of a court. However, Escrowee shall have the right at any
time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the
Supreme Court of the county in which the Premises is located. Escrowee shall give written
notice of such deposit to Seller and Purchaser. Upon such deposit Escrowee shall be
relieved and discharged of all further obligations and responsibilities hereunder. If the
Downpayment is deposited in a money market account, dividends thereon shall be treated,
for purposes of this Section, as interest.
(b) The parties acknowledge that Escrowee is acting solely as a stakeholder at
their request and for their convenience, that the duties of Escrowee hereunder are purely
ministerial in nature and shall be expressly limited to the safekeeping and disposition of
the Downpayment in accordance with the provisions of this contract, that Escrowee shall
not be deemed to be the agent of either of the parties, and that Escrowee shall not be liable
to either of the parties for any act or omission on its part unless taken or suffered in bad
faith, in willful disregard of this contract or involving gross negligence. Seller and
Purchaser shall jointly and severally indemnify and hold Escrowee harmless from and
against all costs, claims and expenses, including reasonable attorneys’ fees, incurred in
connection with the performance of Escrowee’s duties hereunder, except with respect to
actions or omissions taken or suffered by Escrowee in bad faith, in willful disregard of this
contract or involving gross negligence on the part of Escrowee.
(c) Escrowee has acknowledged agreement to these provisions by signing in
the place indicated on the signature page of this contract.
(d) Escrowee or any member of its firm shall be permitted to act as counsel for
Seller in any dispute as to the disbursement of the Downpayment or any other dispute
between the parties whether or not Escrowee is in possession of the Downpayment and
continues to act as Escrowee.
(e) Escrowee may act or refrain from acting in respect of any matter referred to
in this §2.04 in full reliance upon and with the advice of counsel which may be selected by
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it (including any member of its firm) and shall be fully protected in so acting or refraining
from action upon the advice of such counsel.
§2.05. If Seller is a “foreign person”, as defined in Internal Revenue Code Section
1445 and regulations issued thereunder (collectively, the “Code Withholding Section”), or
if Seller fails to deliver the certification of non-foreign status required under §10.01(k), or
if Purchaser is not entitled under the Code Withholding Section to rely on such certification,
Purchaser shall deduct and withhold from the Purchase Price a sum equal to ten percent
(10%) thereof and shall at Closing remit the withheld amount with Forms 8288 and 8288A
(or any successor forms) 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. If Purchaser so terminates this contract, such
termination shall be subject to the provisions of §12.07. The right of termination provided
for in this §2.05 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
§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 at the 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 follow:
§4.01. Seller is the sole owner of the Premises and has not granted any option to
purchase the Premises or any right of first refusal or right of first offer to purchase the
Premises.
§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.
§4.03. The copy of the certificate of occupancy for the Premises attached hereto as
Schedule E is a true copy of the original and such certificate has not been amended or
superseded, but Seller makes no representation as to compliance with any such certificate.
§4.04. (a) As of the date of this contract: The assessed valuation of the Land and
Building and the real estate taxes set forth in Schedule D, if any, are the assessed valuation
of the Premises and the real estate taxes payable with respect thereto for the fiscal year(s)
indicated in such schedule (subject to any abatements that may become applicable after the
date of this contract and any increases or changes in real estate taxes resulting from a
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retroactive change in the tax rate). Except as otherwise set forth in Schedule D, there are
no tax abatements or exemptions affecting the Premises as of the date of this contract.
(b) There are no pending proceedings or appeals to correct or reduce the assessed
valuation of the Premises.
§4.05. The Personal Property, as of the Closing Date, is owned by Seller free of
liens and encumbrances other than the lien(s) of the Existing Mortgage(s), if any.
§4.06. To Seller’s knowledge no incinerator, compactor, 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.
§4.07. Except as otherwise set forth in Schedule D, to Seller’s knowledge, no
assessment payable in annual installments, or any part thereof, has become a lien on the
Premises.
§4.08. Seller is not a “foreign person” as defined in the Code Withholding Section.
§4.09. Seller is a limited liability company that has been duly organized and is in
good standing under the laws of the state of its formation.
§4.10. Seller has taken all necessary action to authorize the execution, delivery and
performance of this contract and has the power and authority to execute, deliver and perform
this contract and consummate the transaction contemplated hereby. The person signing this
contract on behalf of Seller is authorized to do so. Assuming this contract has been duly
authorized, executed and delivered by each of the other party(ies) to this contract, this
contract and all obligations of Seller hereunder are the legal, valid and binding obligations
of Seller, enforceable in accordance with the terms of this contract, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law).
§4.11. The execution and delivery of this contract and the performance of its
obligations hereunder by Seller will not conflict with any provision of any law or regulation
to which Seller is subject or any agreement or instrument to which Seller is a party or by
which it is bound or any order or decree applicable to Seller or result in the creation or
imposition of any lien on any of Seller’s assets or property which would materially and
adversely affect the ability of Seller to carry out the terms of this contract. Seller has
obtained any consent, approval, authorization or order of any court or governmental agency
or body required for the execution, delivery or performance by Seller of this contract.
§4.12. Seller has not received written notice of and has no knowledge of any action,
suit, arbitration, unsatisfied order or judgment, government investigation or proceeding
pending against Seller with respect to the Premises which if adversely determined could
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have a material adverse effect on the Premises or interfere with the consummation of the
transaction contemplated by this contract.
§4.13. Seller is not a, and is not acting directly or indirectly for or on behalf of any,
person, group, entity or nation named by any Executive Order of the United States Treasury
Department as a terrorist, “Specifically Designated National and Blocked Persons,” or other
banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or
regulation that is enforced or administered by the Office of Foreign Assets Control and
Seller is not engaged in this transaction, directly or indirectly on behalf of, or instigating or
facilitating this transaction, directly or indirectly, on behalf of any such person, group,
entity, or nation.
§4.14. To Seller’s knowledge, there are no underground fuel storage tanks at the
Premises.
§4.15. Seller has received no notice of and has no knowledge of any actual or
proposed taking in condemnation of all or any part of the Premises.
§4.16. None of Seller’s representations or warranties shall survive the Closing. No
claim for a misrepresentation or breach of warranty of Seller shall be actionable or payable
if the breach in question results from or is based on a condition, state of facts or other matter
which was known to Purchaser prior to the Closing. Seller shall have no liability to
Purchaser for any misrepresentation or breach of warranty of Seller.
§4.17. The Property shall be delivered vacant and without tenancies.
For purposes of this Section, the phrase “to Seller’s knowledge” shall mean the actual
knowledge of Eli Karp and without any special investigation.
Except where limited specifically to the date of this contract or other date, the
representations and warranties made by Seller in this contract are made as of the date of
execution and delivery of this contract, shall be deemed restated and shall be true and
accurate on the Closing Date.
Section 5. “As Is” Condition, No Representations Not Expressly Set Out
in Contract, Representations and Warranties of Purchaser
§5.01. Purchaser acknowledges that:
(a) Purchaser has inspected or has had an opportunity to inspect the Premises,
is fully familiar with the physical condition and state of repair thereof, and shall accept the
Premises “as is” and in their present condition, subject to reasonable use, wear, tear and
natural deterioration between now and the Closing Date, without any reduction in the
Purchase Price for any such change in condition. Seller shall not be liable for any latent or
patent defects in the Premises.
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(b) Before entering into this contract, Purchaser has made such examination of
the Premises, the operation, income and expenses thereof and all other matters affecting or
relating to this transaction as Purchaser deemed necessary. In entering into this contract,
Purchaser has not been induced by and has not relied upon any representations, warranties
or statements, whether express or implied, made by Seller or any agent, employee or other
representative of Seller or by any broker or any other person representing or purporting to
represent Seller, which are not expressly set forth in this contract, whether or not any such
representations, warranties or statements were made in writing or verbally.
§5.02. Purchaser represents and warrants to Seller that:
(a) The funds comprising the Purchase Price to be delivered to Seller in
accordance with this contract are not derived from any illegal activity.
(b) Purchaser has taken all necessary action to authorize the execution, delivery
and performance of this contract and has the power and authority to execute, deliver and
perform this contract and the transaction contemplated hereby. The person signing this
contract on behalf of Purchaser is authorized to do so. Assuming this contract has been
duly authorized, executed and delivered by each of the other party(ies) to this contract, this
contract and all obligations of Purchaser hereunder are the legal, valid and binding
obligations of Purchaser, enforceable in accordance with the terms of this contract, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(c) The execution and delivery of this contract and of any note and Purchase
Money Mortgage required hereunder and the performance of its obligations hereunder by
Purchaser will not conflict with any provision of any law or regulation to which Purchaser
is subject or any agreement or instrument to which Purchaser is a party or by which it is
bound or any order or decree applicable to Purchaser, and will not result in the creation or
imposition of any lien on any of Purchaser’s assets or property which would materially and
adversely affect the ability of Purchaser to carry out the terms of this contract. Purchaser
has obtained any consent, approval, authorization or order of any court or governmental
agency or body required for the execution, delivery or performance by Purchaser of this
contract.
(d) Purchaser is a limited liability company that has been duly organized and is
in good standing under the laws of the state of its formation.
(e) To Purchaser’s knowledge, there is no action, suit, arbitration, unsatisfied
order or judgment, government investigation or proceeding pending against Purchaser
which, if adversely determined, could individually or in the aggregate materially interfere
with the consummation of the transaction contemplated by this contract.
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(f) Purchaser is not a, and is not acting directly or indirectly for or on behalf of
any, person, group, entity or nation named by Executive Order of the United States
Treasury Department as a terrorist, “Specifically Designated National and Blocked
Person,” or other banned or blocked person, entity, nation or transaction pursuant to any
law, order, rule or regulation that is enforced or administered by the Office of Foreign
Assets Control and Purchaser is not engaged in this transaction, directly or indirectly, on
behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of
any such person, group, entity or nation.
(g) The representations and warranties of Purchaser set forth in this Section 5
are made as of the date of this contract and are restated as of the Closing and shall survive
the Closing for a period of [one year], except that the representation in §5.02(d) shall not
survive the Closing.
For purposes of this §5.02, the phrase “to Purchaser’s knowledge” shall mean the actual
knowledge of Abraham Leifer without any special investigation.
Section 6. Responsibility for Violations
§6.01. Except as provided in §6.02 and §6.03, all notes or notices of violations of
law or governmental ordinances, orders or requirements which were noted or issued prior
to the date of this contract by any governmental department, agency or bureau having
jurisdiction as to conditions affecting the Premises and all liens which have attached to the
Premises prior to the Closing pursuant to the Administrative Code of the City of New York,
if applicable, shall be removed or complied with by Seller and Seller shall pay any fines or
penalties imposed by reason of any such violations. If such removal or compliance or
payment of fines or penalties, as applicable, has not been completed prior to the Closing,
Seller shall pay to Purchaser at the Closing the reasonably estimated unpaid cost, including
the reasonable fees of Purchaser’s attorney, architect and expediter, to effect or complete
such removal or compliance and any penalties imposed for non-compliance, and Purchaser
shall be required to accept title to the Premises subject thereto, except that Purchaser shall
not be required to accept such title and may terminate this contract if (a) Purchaser’s
institutional lender reasonably refuses to provide financing by reason thereof or (b) the
Building is a multiple dwelling and either (i) such violation is rent impairing and causes
rent to be unrecoverable under Section 302-a of the Multiple Dwelling Law or (ii) a
proceeding has been validly commenced by tenants and is pending with respect to such
violation for a judgment directing deposit and use of rents under Article 7-A of the Real
Property Actions and Proceedings Law. All such notes or notices of violations noted or
issued on or after the date of this contract shall be the sole responsibility of Purchaser.
§6.02. If the reasonably estimated aggregate cost to remove or comply with any
violations or liens which Seller is required to remove or comply with pursuant to the
provisions of §6.01 shall exceed the Maximum Amount specified in Schedule D, Seller
shall have the right to cancel this contract, unless Purchaser elects to accept titleto the
Premises subject to all such violations or liens, in which event Purchaser shall be entitled
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to a credit of an amount equal to the Maximum Amount against the monies payable at the
Closing.
§6.03. Seller’s failure to remove or fully comply with any violations which a tenant
unaffiliated with Seller is required to remove or comply with pursuant to the terms of its
lease by reason of such tenant’s use or occupancy shall not be an objection to titleor a
breach of Seller’s obligations under this Section 6. Purchaser shall accept the Premises
subject to all such violations without any liability of Seller with respect thereto or any
abatement of or credit against the Purchase Price, except that if Purchaser’s institutional
lender reasonably refuses to provide financing by reason of a violation described in this
Section, Purchaser shall not be required to accept the Premises subject thereto and
Purchaser shall have the right to terminate this contract.
§6.04. If this contract is terminated by Purchaser or Seller pursuant to this Section
6, such termination shall be subject to the provisions of §12.07.
§6.05. If required, Seller, upon written request by Purchaser, shall promptly furnish
to Purchaser written authorizations to make any necessary searches for the purposes of
determining whether notes or notices of violations have been noted or issued with respect
to the Premises or liens have attached thereto.
Section 7. Destruction, Damage or Condemnation
§7.01. Damage by Casualty.
(a) Damage Not in Excess of $100,000.00. If, prior to the Closing, there shall
occur damage to the Premises caused by fire or other casualty which would cost less than
$100,000.00 (the “Casualty Threshold”) to repair, as reasonably determined by an engineer
selected by Seller and reasonably satisfactory to Purchaser, and such fire or other casualty
does not adversely affect the lobby, building-wide systems, or common areas and the
continued operation of the balance of the Premises not damaged and does not give rise to
rent abatement or termination rights of lessees under leases covering more than 15% (the
“Percentage”) of the rentable square feet of the Building, then Purchaser shall not have the
right to terminate this contract by reason thereof, but Seller shall assign to Purchaser at the
Closing, by written instrument in form and substance reasonably satisfactory to Purchaser,
all of the insurance proceeds payable on account of any such fire or casualty, shall deliver
to Purchaser any such proceeds actually paid to Seller, and shall afford to Purchaser at
Closing a credit against the balance of the Purchase Price in an amount equal to any
deductible. If the limit of Seller=s insurance policy with respect to a casualty at the
Premises is less than the cost of restoration, then Buyer shall be entitled to a further
reduction in the Purchase Price in an amount equal to the difference between the cost of
restoration and the limit of such insurance policy (less the deductible). The proceeds of
rent interruption insurance, if any, shall on the Closing Date be appropriately apportioned
between Purchaser and Seller.
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(b) Damage in Excess of $100,000.00. If prior to the Closing there shall occur
damage to the Premises caused by fire or other casualty which would cost an amount equal
to the Casualty Threshold or more to repair, as reasonably determined by an engineer
selected by Seller and reasonably satisfactory to Purchaser, or the damage affects the lobby,
building-wide systems, or common areas or the continued operation of the balance of the
Premises not damaged or gives rise to rent abatement or termination rights of lessees under
leases covering more than the Percentage of the rentable square feet of the Building, then
Purchaser may elect to terminate this contract by notice given to Seller and Escrowee within
ten (10) days after Seller has given Purchaser notice that such damage occurred, or at the
Closing, whichever is earlier, upon which termination, Escrowee shall deliver the
Downpayment to Purchaser, this contract shall thereupon be null and void and neither party
hereto shall thereupon have any further obligation to the other, except for those obligations
and liabilities that are expressly stated to survive termination of this contract. If Purchaser
does not elect to terminate this contract, then the Closing shall take place as herein
provided, without abatement of the Purchase Price, and Seller shall assign to Purchaser at
the Closing, by written instrument in form reasonably satisfactory to Purchaser, all of the
insurance proceeds payable on account of any such fire or casualty, shall deliver to
Purchaser any such proceeds or awards actually paid to Seller, and shall afford to Purchaser
at Closing a credit against the balance of the Purchase Price in an amount equal to any
deductible. The proceeds of rent interruption insurance, if any, shall on the Closing Date
be appropriately apportioned between Purchaser and Seller.
(c) Seller agrees not to repair any damage to the Premises (other than
emergency repairs) without Purchaser’s prior written consent and not to incur
Reimbursable Amounts totaling in the aggregate in excess of $20,000.00 without
Purchaser’s prior written consent. Purchaser shall have the right to participate in any
discussions, claims adjustments or settlements with insurance companies regarding any
damage to the Premises.
(d) The term “Reimbursable Amounts” shall mean costs and expenses actually
and reasonably incurred by or for the account of Seller in connection with fire or other
casualty for (x) compliance with governmental ordinances, orders or requirements of any
governmental department, agency or bureau having jurisdiction of the Premises, (y)
safeguarding the Premises or any part thereof, including any protective restoration or (z)
emergency repairs made by or on behalf of Seller (to the extent Seller has not theretofore
been reimbursed by its insurance carrier).
§7.02. Condemnation. If after the execution and delivery of this contract and prior
to Closing, any proceedings are instituted by any governmental authority which shall relate
to the proposed taking of all or any portion of the Premises by eminent domain, or if any
such proceedings are pending on the date of execution and delivery of this contract, or if
all or any portion of the Premises is taken by eminent domain after the date of this contract
and prior to the Closing, Seller shall promptly notify Purchaser in writing no later than two
business days after Seller’s receipt of any notification or the date of Closing, whichever
occurs earlier. Purchaser shall thereafter have the right and option to terminate this contract
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021
by giving written notice to Seller and Escrowee within thirty (30) days after receipt by
Purchaser of the notice from Seller or on the Closing Date, whichever is earlier. If the
Closing Date was scheduled to occur after the institution of such proceeding, the Closing
Date shall be deemed adjourned in order that Purchaser shall have its full thirty-day period
within which to determine whether or not to proceed with Closing. If Purchaser timely
terminates this contract, Purchaser shall be entitled to receive the Downpayment from
Escrowee and this con
Preview
FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 EXHIBIT A FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 CONTRACT OF SALE – OFFICE, COMMERCIAL AND MULTI-FAMILY RESIDENTIAL PREMISES. This form was originally prepared by the Committee on Real Property Law of the Association of the Bar of the City of New York. This form may have been altered by the user and any such alterations may not be apparent. To view or download the original unaltered text of this form and an introduction to this form, visit the Real Estate Forms site at the Reports/Publications/ Forms link at www.nycbar.org. Contract of Sale – Office, Commercial and Multi-Family Residential Premises Between HELLO NOSTRAND LLC (“Seller”) and NOSTRAND ALBE LLC (“Purchaser”) Dated: December 20, 2021 Premises: Street Address: 1580 Nostrand Avenue a/k/a 2902 Albemarle Road a/k/a 21 East 29th Street City or Town: Brooklyn County: Kings State: New York FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 CONTRACT OF SALE (“Contract”) dated December ___ 2021 between Hello Nostrand LLC (“Seller”) and Nostrand Albe LLC (“Purchaser”). Seller and Purchaser hereby covenant and agree as follows: Section 1. Sale of Premises and Acceptable Title §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; and (d) the appurtenances and all the estate and rights of Seller in and to the Land and Building (collectively, the “Premises”). For purposes of this contract, “appurtenances” shall include all right, title and interest of Seller, if any, in and to (i) streets, easements, rights-of-way and vehicle parking rights used in connection with the Premises; (ii) any strips or gores of land between the Land and abutting or adjacent properties; (iii) all operating manuals and books, data and records regarding the Premises and its component systems in Seller’s possession; (iv) all licenses, permits, certificates of occupancy and other approvals issued by any state, federal or local authority relating to the use, maintenance or operation of the Premises or the fixtures, machinery or equipment included in this sale to the extent that they may be transferred or assigned; (v) all warranties or guaranties, if any, applicable to the Premises, to the extent such warranties or guaranties are assignable; (vi) all tradenames, trademarks, servicemarks, logos, copyrights and good will relating to or used in connection with the operation of the Premises and (vii) air rights and development rights. This sale also includes all trade fixtures and all equipment, machinery, materials, supplies and other personal property attached or appurtenant to the Building or located at and used in the operation or maintenance of the Land or Building to the extent same are owned by Seller or any affiliate of Seller (the “Personal Property”). The street address of the Premises is set forth on Schedule D attached hereto. §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 FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 other matters as the title insurer specified in Schedule D attached hereto (or if none is so specified, then any title insurer licensed to do business by the State of New York) shall be willing to omit as exceptions to coverage or to except with insurance against collection out of or enforcement against the Premises. Section 2. Purchase Price, Acceptable Funds, Existing Mortgages, Purchase Money Mortgage, Escrow of Downpayment and Foreign Persons §2.01. Purchaser shall pay Seller the purchase price (“Purchase Price”) set forth in Schedule C attached hereto, subject to the terms and conditions of this contract. Seller and Purchaser acknowledge that no portion of the Purchase Price is allocated to the Personal Property, if any, transferred pursuant to this contract. §2.02. Except for the Downpayment (hereinafter defined), 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 loan to Purchaser drawn on any bank or trust company having a banking office in the City of New York and which is a member of the New York Clearing House Association or (b) official bank checks drawn by any such banking institution, except that uncertified checks of Purchaser payable to the order of Seller up to the amount of $2,500 shall be acceptable for sums payable to Seller at the Closing, or (c) with respect to the portion of the Purchase Price payable at the Closing, at Seller’s election, by wire transfer of immediately available federal funds to an account designated by Seller not less than three business days prior to the Closing. §2.03. Seller shall, upon request of Purchaser, use commercially reasonable efforts to cause the holder(s) of the existing mortgage(s) encumbering the Premises to assign it (them) to Purchaser’s lender at Closing, and to deliver to Purchaser’s lender the original mortgage(s) and the original promissory note(s) secured thereby and Purchaser shall pay any and all costs in connection therewith. The amount paid by Purchaser (or its lender) to the holder(s) of such existing mortgage(s) as payment for the assignment of such mortgage(s) shall be deemed a payment on account of the Purchase Price. §2.04. (a) All sums paid on account of the Purchase Price prior to the Closing (collectively, “Downpayment”) shall be paid by good check or checks drawn to the order of and delivered to Seller’s attorney or another escrow agent designated in writing by the parties (“Escrowee”). The Escrowee shall hold the proceeds thereof in escrow in a special bank account at Bank of America, located at Riverdale, New York (or as otherwise agreed in writing by Seller, Purchaser and Escrowee) until the Closing or sooner termination of this contract and shall pay over or apply such proceeds in accordance with the terms of this section. Escrowee shall hold such proceeds in an interest-bearing account, and such interest shall be paid to the same party entitled to the Downpayment, and the party receiving such interest shall pay any income taxes thereon. Escrowee shall not be responsible for any interest on the Downpayment except as is actually earned, or for the loss of any interest resulting from the withdrawal of the Downpayment prior to the date interest is posted thereon or for any loss caused by the failure, suspension, bankruptcy or dissolution of the -2- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 institution in which the Downpayment is deposited. The tax identification numbers of the parties are set forth in Schedule D. Each of the parties, upon Escrowee’s request, shall promptly furnish to Escrowee a completed and executed Form W-9, together with such other information as Escrowee shall reasonably require. At the Closing, such proceeds and the interest thereon, if any, shall be paid by Escrowee to Seller. If for any reason the Closing does not occur and either party makes a written demand upon Escrowee for payment of such amount, Escrowee shall give written notice to the other party of such demand. If Escrowee does not receive a written objection from the other party to the proposed payment within 10 business days after the giving of such notice, Escrowee is hereby authorized to make such payment. If Escrowee does receive such written objection within such 10 day period or if for any other reason Escrowee in good faith shall elect not to make such payment, Escrowee shall continue to hold such amount until otherwise directed by written instructions from the parties to this contract or a final and non-appealable judgment of a court. However, Escrowee shall have the right at any time to deposit the escrowed proceeds and interest thereon, if any, with the clerk of the Supreme Court of the county in which the Premises is located. Escrowee shall give written notice of such deposit to Seller and Purchaser. Upon such deposit Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. If the Downpayment is deposited in a money market account, dividends thereon shall be treated, for purposes of this Section, as interest. (b) The parties acknowledge that Escrowee is acting solely as a stakeholder at their request and for their convenience, that the duties of Escrowee hereunder are purely ministerial in nature and shall be expressly limited to the safekeeping and disposition of the Downpayment in accordance with the provisions of this contract, that Escrowee shall not be deemed to be the agent of either of the parties, and that Escrowee shall not be liable to either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this contract or involving gross negligence. Seller and Purchaser shall jointly and severally indemnify and hold Escrowee harmless from and against all costs, claims and expenses, including reasonable attorneys’ fees, incurred in connection with the performance of Escrowee’s duties hereunder, except with respect to actions or omissions taken or suffered by Escrowee in bad faith, in willful disregard of this contract or involving gross negligence on the part of Escrowee. (c) Escrowee has acknowledged agreement to these provisions by signing in the place indicated on the signature page of this contract. (d) Escrowee or any member of its firm shall be permitted to act as counsel for Seller in any dispute as to the disbursement of the Downpayment or any other dispute between the parties whether or not Escrowee is in possession of the Downpayment and continues to act as Escrowee. (e) Escrowee may act or refrain from acting in respect of any matter referred to in this §2.04 in full reliance upon and with the advice of counsel which may be selected by -3- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 it (including any member of its firm) and shall be fully protected in so acting or refraining from action upon the advice of such counsel. §2.05. If Seller is a “foreign person”, as defined in Internal Revenue Code Section 1445 and regulations issued thereunder (collectively, the “Code Withholding Section”), or if Seller fails to deliver the certification of non-foreign status required under §10.01(k), or if Purchaser is not entitled under the Code Withholding Section to rely on such certification, Purchaser shall deduct and withhold from the Purchase Price a sum equal to ten percent (10%) thereof and shall at Closing remit the withheld amount with Forms 8288 and 8288A (or any successor forms) 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. If Purchaser so terminates this contract, such termination shall be subject to the provisions of §12.07. The right of termination provided for in this §2.05 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 §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 at the 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 follow: §4.01. Seller is the sole owner of the Premises and has not granted any option to purchase the Premises or any right of first refusal or right of first offer to purchase the Premises. §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. §4.03. The copy of the certificate of occupancy for the Premises attached hereto as Schedule E is a true copy of the original and such certificate has not been amended or superseded, but Seller makes no representation as to compliance with any such certificate. §4.04. (a) As of the date of this contract: The assessed valuation of the Land and Building and the real estate taxes set forth in Schedule D, if any, are the assessed valuation of the Premises and the real estate taxes payable with respect thereto for the fiscal year(s) indicated in such schedule (subject to any abatements that may become applicable after the date of this contract and any increases or changes in real estate taxes resulting from a -4- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 retroactive change in the tax rate). Except as otherwise set forth in Schedule D, there are no tax abatements or exemptions affecting the Premises as of the date of this contract. (b) There are no pending proceedings or appeals to correct or reduce the assessed valuation of the Premises. §4.05. The Personal Property, as of the Closing Date, is owned by Seller free of liens and encumbrances other than the lien(s) of the Existing Mortgage(s), if any. §4.06. To Seller’s knowledge no incinerator, compactor, 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. §4.07. Except as otherwise set forth in Schedule D, to Seller’s knowledge, no assessment payable in annual installments, or any part thereof, has become a lien on the Premises. §4.08. Seller is not a “foreign person” as defined in the Code Withholding Section. §4.09. Seller is a limited liability company that has been duly organized and is in good standing under the laws of the state of its formation. §4.10. Seller has taken all necessary action to authorize the execution, delivery and performance of this contract and has the power and authority to execute, deliver and perform this contract and consummate the transaction contemplated hereby. The person signing this contract on behalf of Seller is authorized to do so. Assuming this contract has been duly authorized, executed and delivered by each of the other party(ies) to this contract, this contract and all obligations of Seller hereunder are the legal, valid and binding obligations of Seller, enforceable in accordance with the terms of this contract, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). §4.11. The execution and delivery of this contract and the performance of its obligations hereunder by Seller will not conflict with any provision of any law or regulation to which Seller is subject or any agreement or instrument to which Seller is a party or by which it is bound or any order or decree applicable to Seller or result in the creation or imposition of any lien on any of Seller’s assets or property which would materially and adversely affect the ability of Seller to carry out the terms of this contract. Seller has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery or performance by Seller of this contract. §4.12. Seller has not received written notice of and has no knowledge of any action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending against Seller with respect to the Premises which if adversely determined could -5- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 have a material adverse effect on the Premises or interfere with the consummation of the transaction contemplated by this contract. §4.13. Seller is not a, and is not acting directly or indirectly for or on behalf of any, person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specifically Designated National and Blocked Persons,” or other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control and Seller is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person, group, entity, or nation. §4.14. To Seller’s knowledge, there are no underground fuel storage tanks at the Premises. §4.15. Seller has received no notice of and has no knowledge of any actual or proposed taking in condemnation of all or any part of the Premises. §4.16. None of Seller’s representations or warranties shall survive the Closing. No claim for a misrepresentation or breach of warranty of Seller shall be actionable or payable if the breach in question results from or is based on a condition, state of facts or other matter which was known to Purchaser prior to the Closing. Seller shall have no liability to Purchaser for any misrepresentation or breach of warranty of Seller. §4.17. The Property shall be delivered vacant and without tenancies. For purposes of this Section, the phrase “to Seller’s knowledge” shall mean the actual knowledge of Eli Karp and without any special investigation. Except where limited specifically to the date of this contract or other date, the representations and warranties made by Seller in this contract are made as of the date of execution and delivery of this contract, shall be deemed restated and shall be true and accurate on the Closing Date. Section 5. “As Is” Condition, No Representations Not Expressly Set Out in Contract, Representations and Warranties of Purchaser §5.01. Purchaser acknowledges that: (a) Purchaser has inspected or has had an opportunity to inspect the Premises, is fully familiar with the physical condition and state of repair thereof, and shall accept the Premises “as is” and in their present condition, subject to reasonable use, wear, tear and natural deterioration between now and the Closing Date, without any reduction in the Purchase Price for any such change in condition. Seller shall not be liable for any latent or patent defects in the Premises. -6- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 (b) Before entering into this contract, Purchaser has made such examination of the Premises, the operation, income and expenses thereof and all other matters affecting or relating to this transaction as Purchaser deemed necessary. In entering into this contract, Purchaser has not been induced by and has not relied upon any representations, warranties or statements, whether express or implied, made by Seller or any agent, employee or other representative of Seller or by any broker or any other person representing or purporting to represent Seller, which are not expressly set forth in this contract, whether or not any such representations, warranties or statements were made in writing or verbally. §5.02. Purchaser represents and warrants to Seller that: (a) The funds comprising the Purchase Price to be delivered to Seller in accordance with this contract are not derived from any illegal activity. (b) Purchaser has taken all necessary action to authorize the execution, delivery and performance of this contract and has the power and authority to execute, deliver and perform this contract and the transaction contemplated hereby. The person signing this contract on behalf of Purchaser is authorized to do so. Assuming this contract has been duly authorized, executed and delivered by each of the other party(ies) to this contract, this contract and all obligations of Purchaser hereunder are the legal, valid and binding obligations of Purchaser, enforceable in accordance with the terms of this contract, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (c) The execution and delivery of this contract and of any note and Purchase Money Mortgage required hereunder and the performance of its obligations hereunder by Purchaser will not conflict with any provision of any law or regulation to which Purchaser is subject or any agreement or instrument to which Purchaser is a party or by which it is bound or any order or decree applicable to Purchaser, and will not result in the creation or imposition of any lien on any of Purchaser’s assets or property which would materially and adversely affect the ability of Purchaser to carry out the terms of this contract. Purchaser has obtained any consent, approval, authorization or order of any court or governmental agency or body required for the execution, delivery or performance by Purchaser of this contract. (d) Purchaser is a limited liability company that has been duly organized and is in good standing under the laws of the state of its formation. (e) To Purchaser’s knowledge, there is no action, suit, arbitration, unsatisfied order or judgment, government investigation or proceeding pending against Purchaser which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transaction contemplated by this contract. -7- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 (f) Purchaser is not a, and is not acting directly or indirectly for or on behalf of any, person, group, entity or nation named by Executive Order of the United States Treasury Department as a terrorist, “Specifically Designated National and Blocked Person,” or other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control and Purchaser is not engaged in this transaction, directly or indirectly, on behalf of, or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person, group, entity or nation. (g) The representations and warranties of Purchaser set forth in this Section 5 are made as of the date of this contract and are restated as of the Closing and shall survive the Closing for a period of [one year], except that the representation in §5.02(d) shall not survive the Closing. For purposes of this §5.02, the phrase “to Purchaser’s knowledge” shall mean the actual knowledge of Abraham Leifer without any special investigation. Section 6. Responsibility for Violations §6.01. Except as provided in §6.02 and §6.03, all notes or notices of violations of law or governmental ordinances, orders or requirements which were noted or issued prior to the date of this contract by any governmental department, agency or bureau having jurisdiction as to conditions affecting the Premises and all liens which have attached to the Premises prior to the Closing pursuant to the Administrative Code of the City of New York, if applicable, shall be removed or complied with by Seller and Seller shall pay any fines or penalties imposed by reason of any such violations. If such removal or compliance or payment of fines or penalties, as applicable, has not been completed prior to the Closing, Seller shall pay to Purchaser at the Closing the reasonably estimated unpaid cost, including the reasonable fees of Purchaser’s attorney, architect and expediter, to effect or complete such removal or compliance and any penalties imposed for non-compliance, and Purchaser shall be required to accept title to the Premises subject thereto, except that Purchaser shall not be required to accept such title and may terminate this contract if (a) Purchaser’s institutional lender reasonably refuses to provide financing by reason thereof or (b) the Building is a multiple dwelling and either (i) such violation is rent impairing and causes rent to be unrecoverable under Section 302-a of the Multiple Dwelling Law or (ii) a proceeding has been validly commenced by tenants and is pending with respect to such violation for a judgment directing deposit and use of rents under Article 7-A of the Real Property Actions and Proceedings Law. All such notes or notices of violations noted or issued on or after the date of this contract shall be the sole responsibility of Purchaser. §6.02. If the reasonably estimated aggregate cost to remove or comply with any violations or liens which Seller is required to remove or comply with pursuant to the provisions of §6.01 shall exceed the Maximum Amount specified in Schedule D, Seller shall have the right to cancel this contract, unless Purchaser elects to accept titleto the Premises subject to all such violations or liens, in which event Purchaser shall be entitled -8- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 to a credit of an amount equal to the Maximum Amount against the monies payable at the Closing. §6.03. Seller’s failure to remove or fully comply with any violations which a tenant unaffiliated with Seller is required to remove or comply with pursuant to the terms of its lease by reason of such tenant’s use or occupancy shall not be an objection to titleor a breach of Seller’s obligations under this Section 6. Purchaser shall accept the Premises subject to all such violations without any liability of Seller with respect thereto or any abatement of or credit against the Purchase Price, except that if Purchaser’s institutional lender reasonably refuses to provide financing by reason of a violation described in this Section, Purchaser shall not be required to accept the Premises subject thereto and Purchaser shall have the right to terminate this contract. §6.04. If this contract is terminated by Purchaser or Seller pursuant to this Section 6, such termination shall be subject to the provisions of §12.07. §6.05. If required, Seller, upon written request by Purchaser, shall promptly furnish to Purchaser written authorizations to make any necessary searches for the purposes of determining whether notes or notices of violations have been noted or issued with respect to the Premises or liens have attached thereto. Section 7. Destruction, Damage or Condemnation §7.01. Damage by Casualty. (a) Damage Not in Excess of $100,000.00. If, prior to the Closing, there shall occur damage to the Premises caused by fire or other casualty which would cost less than $100,000.00 (the “Casualty Threshold”) to repair, as reasonably determined by an engineer selected by Seller and reasonably satisfactory to Purchaser, and such fire or other casualty does not adversely affect the lobby, building-wide systems, or common areas and the continued operation of the balance of the Premises not damaged and does not give rise to rent abatement or termination rights of lessees under leases covering more than 15% (the “Percentage”) of the rentable square feet of the Building, then Purchaser shall not have the right to terminate this contract by reason thereof, but Seller shall assign to Purchaser at the Closing, by written instrument in form and substance reasonably satisfactory to Purchaser, all of the insurance proceeds payable on account of any such fire or casualty, shall deliver to Purchaser any such proceeds actually paid to Seller, and shall afford to Purchaser at Closing a credit against the balance of the Purchase Price in an amount equal to any deductible. If the limit of Seller=s insurance policy with respect to a casualty at the Premises is less than the cost of restoration, then Buyer shall be entitled to a further reduction in the Purchase Price in an amount equal to the difference between the cost of restoration and the limit of such insurance policy (less the deductible). The proceeds of rent interruption insurance, if any, shall on the Closing Date be appropriately apportioned between Purchaser and Seller. -9- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 (b) Damage in Excess of $100,000.00. If prior to the Closing there shall occur damage to the Premises caused by fire or other casualty which would cost an amount equal to the Casualty Threshold or more to repair, as reasonably determined by an engineer selected by Seller and reasonably satisfactory to Purchaser, or the damage affects the lobby, building-wide systems, or common areas or the continued operation of the balance of the Premises not damaged or gives rise to rent abatement or termination rights of lessees under leases covering more than the Percentage of the rentable square feet of the Building, then Purchaser may elect to terminate this contract by notice given to Seller and Escrowee within ten (10) days after Seller has given Purchaser notice that such damage occurred, or at the Closing, whichever is earlier, upon which termination, Escrowee shall deliver the Downpayment to Purchaser, this contract shall thereupon be null and void and neither party hereto shall thereupon have any further obligation to the other, except for those obligations and liabilities that are expressly stated to survive termination of this contract. If Purchaser does not elect to terminate this contract, then the Closing shall take place as herein provided, without abatement of the Purchase Price, and Seller shall assign to Purchaser at the Closing, by written instrument in form reasonably satisfactory to Purchaser, all of the insurance proceeds payable on account of any such fire or casualty, shall deliver to Purchaser any such proceeds or awards actually paid to Seller, and shall afford to Purchaser at Closing a credit against the balance of the Purchase Price in an amount equal to any deductible. The proceeds of rent interruption insurance, if any, shall on the Closing Date be appropriately apportioned between Purchaser and Seller. (c) Seller agrees not to repair any damage to the Premises (other than emergency repairs) without Purchaser’s prior written consent and not to incur Reimbursable Amounts totaling in the aggregate in excess of $20,000.00 without Purchaser’s prior written consent. Purchaser shall have the right to participate in any discussions, claims adjustments or settlements with insurance companies regarding any damage to the Premises. (d) The term “Reimbursable Amounts” shall mean costs and expenses actually and reasonably incurred by or for the account of Seller in connection with fire or other casualty for (x) compliance with governmental ordinances, orders or requirements of any governmental department, agency or bureau having jurisdiction of the Premises, (y) safeguarding the Premises or any part thereof, including any protective restoration or (z) emergency repairs made by or on behalf of Seller (to the extent Seller has not theretofore been reimbursed by its insurance carrier). §7.02. Condemnation. If after the execution and delivery of this contract and prior to Closing, any proceedings are instituted by any governmental authority which shall relate to the proposed taking of all or any portion of the Premises by eminent domain, or if any such proceedings are pending on the date of execution and delivery of this contract, or if all or any portion of the Premises is taken by eminent domain after the date of this contract and prior to the Closing, Seller shall promptly notify Purchaser in writing no later than two business days after Seller’s receipt of any notification or the date of Closing, whichever occurs earlier. Purchaser shall thereafter have the right and option to terminate this contract -10- FILED: ROCKLAND COUNTY CLERK 12/21/2021 01:41 PM INDEX NO. 034885/2021 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 12/21/2021 by giving written notice to Seller and Escrowee within thirty (30) days after receipt by Purchaser of the notice from Seller or on the Closing Date, whichever is earlier. If the Closing Date was scheduled to occur after the institution of such proceeding, the Closing Date shall be deemed adjourned in order that Purchaser shall have its full thirty-day period within which to determine whether or not to proceed with Closing. If Purchaser timely terminates this contract, Purchaser shall be entitled to receive the Downpayment from Escrowee and this con