Preview
FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
Exhibit
G
FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
EXECUTION COPY
AGREEMENT OF PURCHASE AND SALE
between
The August Aichhorn Center for Adolescent Residential Care, Inc. ("Seller")
and
Liberty Acquisitions LLC ("Purchaseron)
Dated: May20,2022
Premises:
Street Address: 23 West 106th Street & 142 Manhattan Avenue,
New York, New York 10025
City: New York
County New York
State: New York
Block l842,Lots 18 & 19
FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
Table of Contents
Section 1. Sale of Premises and Acceptable Title ...............3
Section 2. Purchase Price, Acceptable Funds, Escrow of Down
A
Payment and Foreign Persons..
Section 3. The CIosing............... ...............6
Section 4. Representations and Warranties of Seller.... ...............6
Section 5. Acknowledgments, Representations and Warranties of
Purchaser.. ............. I 0
Section 6. Seller's Obligations as to Leases .............12
Section 7. Responsibility for Violations .. ',...'..,,..'|2
Section 8. Condemnatior/ Casualty......... l2
Section 9. Covenants of SelIer........... 13
Section 10. Seller's Closing Obligations ....... 14
Section I 1. Purchaser's Closing Obligations. t4
Section 12. Apportionments .......... l5
Section 13. Objections to Title, Failure of Seller or Purchaser to
Perform, Vendee's Lien and Contingency............'..... ...r6
Section 14. Broker ...18
Section 15. Notices ...19
Section 16. Limitations on Survival of Representatiotls, Warranties,
Covenants and other Obligations................ .............. 1 9
Section 17. Confi dential Information................ .............. 1 9
Section 18. Contingencies ............. ..............20
Section 19. Miscellaneous Provisions ......... ..............20
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EXHIBITS
Exhibit A, DF',SCRIPTION OF PREMISES ............. A-1
Exhibit B. PERMITTED EXCEPTIONS B-l
Exhibit C. PURCHASE PzuCE c-l
Exhibit D, MISCELLANEOUS D-1
Exhibit E. SERVICE CONTRACTS .......... E-l
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FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
Agreement of Purchase and Sale
AGREEMENT OF PURCHASE AND SALE ("Agreement") dated May 20, 2022,
between The August Aichhorn Center for Adolescent Residential Care, Inc., a New
York not-for-profit corporation with a place of business c/o August Aichhorn Center, 15
West 72nd Street, New York, New York 10023 ("Seller") and Liberty Acquisitions LLC,
a New York limited liability company with a place of business aI clo Liberty One Group,
88 Pine Street, New York, New York 10005 ("Purchaser")
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of that certain real property, located
in the Borough of Manhattan, City, County and State of New York, known as the street
address 23 West 106th Street & 142 Manhattan Avenue, New York, New York 10025 and
shown on the tax map of the City of New York as Tax Block 1842, Lots 18 & 19; and
WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase the "Premises"
(as defined below) upon and subject to all the terms, covenants and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, Seller and Purchaser hereby
covenant and agree, as follows:
Section 1. Sale of Premises and Acceptable Title
$1.01. Seller shall sell to Purchaser, and Purchaser shall purchase from
Seller, at the price and upon the terms and conditions set forth in this Agreement: the
"Premises", which are defined to include: (a) the parcel of land more particularly
described in Exhibit A attached hereto, known as 23 West 106th Street & 142 Manhattan
Avenue, New York, New York 10025 (the "Land"), (b) the improvements, structures
and fixtures, if any, located on the Land (collectively, the "Improvements"); (c) all of
Seller's right, title and interest, if any, in, to and under (i) any land lying in the bed of
any street or highway in front of the Land to the center line thereof, (ii) any unpaid
award for a taking by condemnation or any other damage to the Land by reason of a
change of grade of any street or highway, (iii) any easements and rights of way,
appurtenances, strips, gores and other rights pertaining to the Premises, and (iv) all of
Seller's right, title and interest, if any, to all other general intangibles relating to the
Land, including, but not limited to, all of Seller's right, title and interest to all
developments rights, air rights, entitlements, permits, licenses, approvals and
agreements belonging, benefiting or pertaining to the Land and the development,
construction, ownership, use andlor operation thereof, and (d) all right, title and interest
of Seller, if any, in and to the fixtures, equipment and other personal property owned by
Seller and attached or appurtenant to the Premises (collectively, the "Personalty"). The
street address of the Premises is also set forlh on Exhibit D attached hereto.
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$ L02.
Seller shall convey, and Purchaser shall accept fee simple title to the
premises in accordance with the terms of this Agreement, subject only to: (a) the matters
set forth in Exhibit B attached hereto (collectively, "Permitted Exceptions"); and (b)
such other matters as any reputable title insurance company licensed to do business in
the City of New York shall be willing to approve and insure in accordance with its
standard form of title policy approved by the New York State Insurance Department,
subject only to the matters provided for in this Agreement.
Section 2.
Purchase Price, Acceptable Funds, Escrow of Down Payment and
Foreign Persons
$2.01. The purchase price ("Purchase Price") to be paid by Purchaser to
Seller for the Premises is set forth in Exhibit C attached hereto. The parties agtee Ihat
the Personalty included in this sale is negligible, and that no portion of the Purchase
Price is attributable thereto
52.02. [IntentionallY Omitted].
$2.03. Allmonies payable under this Agreement, unless otherwise
specifiei in this Agreement, shall be paid by wire transfer of Purchaser from
immediately available federal funds to an account designated by Seller.
$2.04. The amount specified under paragraph (a) of Exhibit C or any other
sums paid on account of the Purchase Price prior to the Closing (collectively, the "Down
pa)iment") are to be paid by wired funds to the order of and delivered to Seller's attomey
(or as otherwise agreed
CE;g1qfyge") in esciow in a special bank account at TD Bank
i".ritirg by Seller, Purchaser and Escrowee) until the Closing or sooner termination of
this Agreement and shall pay over or apply such proceeds in accordance with the terms
of this section. Any interest accruing on such proceeds in an interest-bearing account,
and such interest shall be paid to the same party entitled to the Down Payment.
Escrowee shall not be responsible for any interest on the Down Payment, except as is
actually earned, or for the loss of any interest resulting from the withdrawal of the Down
payment prior to the date interest is posted thereon or for any loss caused by the failure,
suip"nsion, bankruptcy or dissolution of the institution in which the Down Payment is
deposited. The tax identification numbers of the parties are either set forth in Exhibit D
otihull be furnished to Escrowee upon request. At the Closing, such proceeds and the
interest thereon, if any, shall be paid by Escrowee to Seller.
$2.05. 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 frorn the other party to the proposed payment within seven (7) Business Days
(as hereinafter defined) after the giving of such notice, Escrowee is hereby authorized
io make such payment. If Escrowee does receive such written objection within such
seven (7) Business 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 Agreement ol a final
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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 Purchasel. Upon such deposit Escrowee
shall be relieved and discharged of all further obligations and responsibilities hereunder.
If the Down Pa-,vment is deposited in a money market account, dividends thereon shall
be treated, for purposes of this Section, as interest.
(a) Intentionally Omitted
(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 Down Payment in accordance with the provisions of this Agreement, that Escrowee
shall not be deemed to be the agent of either of the parties, and that Escrowee shall not be
liable 1o either of the parties for any act or omission on its part unless taken or suffered in
bad faith, in willful disregard of this Agreement 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 perfotmance 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
Agreement or involving gross negligence on the part of Escrowee.
(c) The duties of Escrowee are purely ministerial. Escrowee shall not have any
duties or responsibilities except those set forth in this Agreement and shall not incur any
liability in acting upon any signature, notice, request, waiver, consent, receipt or other
paper or document believed by Escrowee to be genuine, and Escrowee may assume that
any person purpolting to give it any notice on behalf of any party in accordance with the
provisions hereof has been duly authorized to do so.
(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 Down Payment or any other dispute
between the parlies whether or not Escrowee is in possession of the Down Payment and
continues to act as Escrowee.
(e) Escrowee may act or refi'ain from acting in respect of any matter referred to
in this $2.05 in full reliance upon and with the advice of counsel which may be selected by
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.
(f) Upon delivery of the Escrow Funds pursuant to this Agreement in
accordance with this Agreement, Purchaser and Seller hereby release Escrowee from all
obligation and liability hereunder
(g) Any notice to Escrowee to be effective for the purpose of providing notice
pursuant hereto shall be delivered in accordance with Section l5 of this Agreement.
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(h) Intentionally Ornitted.
(i) Escrowee has acknowledged agreement to these provisions by signing in
the place indicated on the signature page of this Agreement.
(j)For the purposes of this Agreement, the term "Business Day", as used herein,
means a day of the year on which banks are not required or authorized to close in New
York City.
$2.06. In the event that Seller fails to deliver a certification of non-foreign
status, as defined in Section 1445 of the Internal Revenue Code of 1986, as amended
(the "Code") Section 1445 and regulations issued thereunder (collectively, the "Code
Withholdine Section"), or in the event that Purchaser is not entitled under the Code
Withholding Section to rely on such cerlification, Purchaser shall deduct and withhold
from the Purchase Price a sum equal to fifteen percent (15%) 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 fifteen
percent (I5%) of the Purchase Price, Purchaser shall have the right to terminate this
Agreement, in which event Seller shall refund the Down Payment to Purchaser and shall
reimburse Purchaser for any title examination costs as if this Agreement were terminated
pursuant to $13.02. The right of termination provided for in this $2.06 shall be in
addition to and not in limitation of any other rights or remedies available to Purchaser
under applicable law.
Section 3. The Closing
$3.01. Except as otherwise provided in this Agreement, the closing of title
pursuant to this Agreement ("Closing") shall take place on the scheduled date and at the
time of closing specified in Exhibit D (the actual date of the Closing being herein
referred to as "Closing Date") at the place specified in Exhibit D.
Section 4. Representations and Warranties of Seller
Seller represents and warrants to Purchaser as follows
$4.01 . Seller is the sole owner of the Premises
$4.02. Subject to the provisions of Section 18 hereof, Seller has the power
and authority to execute, deliver and perform this Agreement and the transaction
contemplated hereby. The pelson signing this Agreement on behalf of Seller is
authorized to do so. Assuming due authorization, execution and delivery by each other
party hereto, this Agreement and all obligations of Seller hereunder are the legal, valid
and binding obligations of Seller, enforceable in accordance with the terms of this
Agreement, except as such enforcement may be lirnited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors' rights
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generally and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
$4.03. The execution and delivery of this Agreement 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 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 cany out the terms of this
Agreement. Subject to the provisions of Section 18 hereof, Seller has obtained any
consent, approval, author.ization or order of any coult or governmental agency or body
required for the execution, delivery or performance by Purchaser of this Agreement.
$4.04. A copy of the existing service, maintenance and supply contracts
("Service Contracts") with respect to the Premises that will be extant on the Closing
Date are attached to Exhibit "E" hereto. If requested by Purchaser, Seller shall have
some or all gf the Servig_e- Cqnllapts (as specified by Purchaser) terminated as of the
Closing Date upon written request of Purchaser not less than 90 days prior to the
anticipated Closing Date, unless such Service Contract is terminable without penalty on
such shorler notice as may be given by Purchaser. Seller represents that all such Service
Contracts are terminable without,penalty on thirty (30) days notice, except that certain
elevator maintenance contract dated April 30,2013 with BP Elevator Co, which is
terminable without penalty on ninety (90) days notice.
$4.05. Seller has not granted to any person or entity any right of first offer
or first refusal or option to purchase, lease or finance any or any portion of the Premises.
$4.06. Seller is not a "foreign person" as defined in the Code Withholding
Section.
$4.07. Seller is a not-for-profit corporation, duly organized and validly and
presently existing in good standing under the laws of the State of New York. [See Article
1 81.
$4.08. To the best of Seller's knowledge, there is no action, suit, arbitration,
unsatisfied order or judgment, go\relnment investigation or proceeding pending against
Seller, which, if adversely determined, could individually or in the aggregate materially
interfere with the consummation of the transaction contemplated by this Agreement.
$4.09. Seller is not 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 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.
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$4.10. Seller (a) is not in receivership or dissolution, (b) has not made an
assignment for the benefit of creditors or admitted in writing its inability to pay its debts
as they mature, (c) has not been adjudicated a bankrupt or filed a petition in voluntary
bankruptcy or a petition or answer seeking reorganization or an arrangement with
creditors under the Federal bankruptcy law or any other similar law or statute of the
United States or any jurisdiction and no such petition has been filed against Purchaser,
and (d) to the best of its knowledge, none of the foregoing are pending or threatened.
$4.11. No representations or warranties are made by Seller in connection
with the sale or condition of the Premises, other than as expressly set forth in this
Agreement. Without limiting the generality of the foregoing and except as provided in
this Agreement, Seller has made no wamanty or representation with respect to any of
the following items: (i) physical condition of the Premises, which, upon the closing of
the transaction described herein, Purchaser shall be deemed to have accepted "as is", (ii)
the future prospects of the Premises, including the ability of the owner thereof to obtain
an abatement of real estate taxes, (iii) future use or compliance with government
programs, (iv) the future census of the Premises or the source or amount of future
revenues, (v) the continued existence, interpretation or future effect ofstatutes, rules or
regulations affecting or relating to the Premises and its continued operation, (vi) matters
of title, (vii) environmental matters relating to the Pr'emises or any portion thereof,
including, without limitation, the presence of Hazardous Materials (as hereinafter
defined) in, on, under or in the vicinity of the Premises, (viii) geological conditions,
including, without limitation, subsidence, subsurface conditions, water table,
underground waterreservoirs, limitations regarding the withdrawal of water, and
geologic faults and the resulting damage of past andlor future faulting, (ix) whether, and
to the extent to which the Premises or any portion thereof is affected by any stream
(surface or underground), body of water, wetlands, flood prone area, flood plain,
floodway or special flood hazard, (x) drainage, (xi) soil conditions, including the
existence of instability, past soil repairs, soil additions or conditions of soil fill, or
susceptibility to landslides, or the sufficiency of any undershoring, (xii) the presence of
endangered species or any environmentally sensitive or protected areas, (xiii) zoning or
building entitlements to which the Premises or any portion thereof may be subject,
(xiv) the availability of any utilities to the Premises or any portion thereof including,
without limitation, water, sewage, gas and electric, (xv) usages of adjoining property,
(xvi) access to the Premises or any portion thereof, (xvii) the value, compliance with the
plans and specifications, size, location, age, use, design, quality, description, suitability,
structural integrity, operation, title to, or physical or financial condition of the Premises
or any porlion thereof, or any income, expenses, charges, liens, encumbrances, rights or
claims on or affecting or pertaining to the Premises or any paft thereof, (xviii) the
existence or non-existence of underground storage tanks, surface impoundments, or
landfills, (xix) the merchantability of the Premises or fitness of the Premises for any
particular purpose, (xx) tax consequences, or (xxi) any other matter or thing with respect
to the Premises. Except as may otherwise be expressly set forth in this Agreement,
Seller hereby disclaims any warranty or guaranty, oral or written, express or implied or
arising by operation of law or otherwise, with respect to the matters referred to in this
Section and any warranty of condition, habitability, melchantability or fitness for a
particular purpose, in respect to the Premises. Purchaser shall independently determine
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and/or confirm to its satisfaction all information that it considers material to its purchase
of the Premises. This Section 4.11 shall survive the Closing or earlier termination of
this Agreement.
(c) (i) For pulposes hereof, "Hazardous Materials" means "Flazardous
Material," "Hazardous Substance," "Pollutant or Contaminant," and "Petroleum" and
"Natural Gas Liquids," as those terms ale defined or used in Section 101 of CERCLA,
SEQR or CEQR and any other substances regulated under federal, state or local law
because of their effect or potential effect on public health and the environment, including,
without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials,
putrescible, and infectious materials. Purchaser as of the Closing Date hereby forever
releases and discharges Seller from all responsibility and iiability, including without
limitation, liabilities under the Comprehensive Environmental Response, Compensation
and Liability Act Of 1980 (42 U.S.C. Sections 96Q1 et seq.), as amended ("CERCLA"),
the New York State Environmental Quality Review Act (l\.Y. Environmental
Conservation Law $ 8 (McKinney 2011), et g9g.),.as arnended (i:SEQRl') and the New
York City Environmental Quality Review (2 RCNY $ 1-04 et seq.), as amended ("CEQR")
regarding tl"re condition (including the presence in the soil, air, structures and surface and
subsurface waters, of Hazardous Materials or other materials or substances that have been
or may in the future be determined to be toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled and/or removed from the
Premises under current or future federal, state and local laws, regulations or guidelines),
valuation, salability or utility of the Premises, or its suitability for any purpose whatsoever.
Purchaser further hereby waives (and by closing this transaction will be deemed to have
waived) any and all objections to or complaints regarding (including, but not lirnited to,
federal, state and common law based actions), or any private right of action under, state
and federal law to which the Premises is or may be subject, including, without limitation,
structural and geologic conditions, sulsurface soil and water conditions and solid and
hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the
Premises. Purchaser further hereby assumes the risk of changes in applicable laws and
regulations relating to past, present and future environmental conditions on the Premises
and the risk that adverse physical characteristics and conditions, including, without
limitation, the presence of Hazardous Materials or other contaminants, may not have been
revealed by its investigation.
54.12. The Premises are not subject to any leases, licenses or other rights
to occupy, it being understood and agreed that Seller shall be obligated to deliver the
Premises to Purchaser in vacant condition at Closing. Any furnishings or other
Personalty remaining in the Premises as of the Closing Date shall be deemed abandoned
by Seller and Purchaser shall have the right to dispose of same at Purchaser's expense.
$4.13. There are no employees cumently employed by Seller at the
Premises who will remain employed following the Closing. There are no collective
bargaining or union agreements in effect with respect to the Premises. Seller will not
enter into any negotiations or execute any contract with a labor union between the
effective date hereof and the Closing.
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54.14. To the best of Seller's knowledge, there is no litigation pending that
would adversely affect Seller's ability to perform hereunder.
$4.15. Seller has maintained liability insurance coverage throughout its
ownership and shall continue to maintain same through Closing.
$4.16. To the best of Seller's knowledge, there are no condemnation or
eminent proceedings pending or threatened against the Premises.
$4.i7. Seller has not transfened or encumbered or agreed to transfer any
development or air rights pertaining to the Premises.
54.18. The representations and warranties made by Seller in this
Agreement are made as of the date of execution and delivery of this Agreement, and
except as otherwise set forth herein, shall be deemed restated and shall be true and
accurate on the Closing Date.
For purposes of this Section, the phrase "to Seller's knowledge" shall mean the
actual knowledge of Michael Pawel without any special investigation. In no event shall
Michael Pawel be individually liable for any alleged misrepresentations in connection with
the representations and warranties rnade by Purchaser pursuant to this Agreement.
Section 5. Acknowledgments, Representations and Warranties of Purchaser
Purchaser acknowledges that:
$5.01. will have inspected or has had an opportunity to inspect
Purchaser
the Premises, is fully familiar with the physical condition thereof, and, except as
otherwise provided in this Agreement, shall accept the Premises "as is, where is, with
all faults" and in their present condition, subject to reasonable use, wear, tear and natural
deterioration between now and the Closing Date, without any reduction in the Purchase
Price for any change in such condition by reason thereofsubsequent to the date ofthis
Agreement.
$5.02. Purchaser will have made such examination of the Premises, the
operation, any income and expenses thereof and all other matters affecting or relating to
this transaction as Purchaser deemed necessary. In entering into this Agreement,
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 pulporting to represent Seller, which are not expressly set forth in this
Agreement, whether or not any such representations, warranties or statements were
made in writing or verbally.
$5.03. Purchaser represents and warrants to Seller that:
(a) The funds comprising the Purchase Price to be delivered to Seller in
accordance with this Agreement are not derived fiom any illegal activity.
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(b) Purchaser has the power and authority to execute, deliver and perform this
Agreement and the transaction contemplated hereby. The person signing this Agreement
on behalf of Purchaser is authorized to do so. Assuming due authorization, execution and
delivery by each other party hereto, this Agreement and all obligations of Purchaser
hereunder are the legal, valid and binding obligations of Purchaser, enforceable in
accordancelryilh the terms of this Agreement, except as such enforcement may be lirnited
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 Agreement 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 order or decree applicable to Purchaser or
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 ,{greement. P-urchaser 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 Agreement.
(d) Purchaser is a lirnited liability company'that has been duly organized and is
validly and presently existing in good standing under the laws of the state of its formation
and is qualified to do business in the State of New York.
(e) As of the date hereof, 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 Agreement.
(0 Purchaser is not and is not acting directly or indirectly, for or on behalf of
any person, group, entity or nation named by Executive Order ofthe United States Treasury
Department as a terrorist, "Specifically Designated National and Blocked Person," or other
banned or blocked person, entify, 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) Purchaser (i) is not in receivership or dissolution, (ii) has not made an
assignment for the benefit of creditors or admitted in writing its inability to pay its debts
as they mature, (iii) has not been adjudicated a b'ankrupt or filed a petition in voluntary
bankruptcy or a petition or answer seeking reorgantzation or an arrangement with creditors
under the Federal bankruptcy law or any other similar law or statute of the United States
or any jurisdiction and no such petition has been filed against Purchaser, and (iv) to the
best of its knowledge, none of the foregoing are pending or threatened.
(h) The representations and warranties of Purchaser set forth in this Section 5
are made as of the date of this Agreement and are restated as of the Closing Date.
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
For purposes of this Section, the phrase "to Purchaser's knowledge" shall mean the
actual knowledge of Jojo Rabinowitz without any special investigation. In no event shall
Jojo Rabinowitz be individually liable for any alleged misrepresentations in connection
with the representations and warranties made by Purchaser pursuant to this Agreement.
Section 6. Seller's Obligations as to Leases.
$6.01 .
There are no existing Leases with respect to the Premises, and Seller
shall not enter into any such Leases prior to Closing hereunder.
Section 7. Responsibility for Violations.
$7.01. Purchaser shall accept title to the Premises subject to any and all
notes or notices of violations of law or governmental ordinances, orders or requirements
which were noted or issued prior to the date of this Agreement by any governmental
department, agency or bureau having jurisdiction as to conditions affecting the Premise
pursuant to the Administrative Code of the City ofNew York. All such notes or notices
of violations noted or issued on or after the date of this Agreement shall also be the sole
responsibility of Purchaser. Seller shall be obligated to satis$ all monetary violations
and all administrative fines and penalties issued by any government agency or to
establish a mutually acceptable escrow to cover the cost of removing such fines and
penalties, if any.
Section 8. Condemnation/Casualty.
$S.01. In the event of the institution of any proceedings by any
governmental authority which shall relate to the proposed taking of any portion of the
Premises by eminent domain prior to the Closing, or in the event of the taking of any
portion of the Premises by eminent domain prior to the Closing, Seller shall promptly
notify Purchaser in writing no later than two (2) Business Days after Seller's receipt of
any notification. Purchaser shall thereafter have the right and option to terminate this
Agreement 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 Agreement, Purchaser shall be entitled to
receive the Down Payment from Escrowee and this Agreement shall thereupon be
terminated and become void and of no further effect, and neither party hereto shall have
any obligations ofany nature to the other hereunder or by reason hereof, except for those
obligations and liabilities that are expressly stated to survive termination of this
Agreement. If Purchaser does not elect to terminate this Agreement, the parties hereto
shall proceed to the Closing and at the Closing, Seller shall assign to Purchaser all of its
right, title and interest in all awards in connection with such taking. The provisions of
this Section 8 shall survive the Closing.
-12-
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023
$8.02. (a) Notwithstanding the provision of New York law to the
contrary, including without limitation Section 5-1311 of the General Obligations Law,
pertaining to risk of loss in the event of a fire or other casualty prior to the Closing, if
all or any portion the Premises is damaged by fire or other casualty, (i) Purchaser shall
purchase the Prernises in its "as is" condition at Closing, (ii) Seller shall assign the
proceeds of Seller''s casualty insurance, if any, cr the rights undei' such insurancc
policies thereof, less any expenditures actually and reasonably incurred by Seller in
connection with rendering the Premises safe to the publi
Preview
FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 Exhibit G FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 EXECUTION COPY AGREEMENT OF PURCHASE AND SALE between The August Aichhorn Center for Adolescent Residential Care, Inc. ("Seller") and Liberty Acquisitions LLC ("Purchaseron) Dated: May20,2022 Premises: Street Address: 23 West 106th Street & 142 Manhattan Avenue, New York, New York 10025 City: New York County New York State: New York Block l842,Lots 18 & 19 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 Table of Contents Section 1. Sale of Premises and Acceptable Title ...............3 Section 2. Purchase Price, Acceptable Funds, Escrow of Down A Payment and Foreign Persons.. Section 3. The CIosing............... ...............6 Section 4. Representations and Warranties of Seller.... ...............6 Section 5. Acknowledgments, Representations and Warranties of Purchaser.. ............. I 0 Section 6. Seller's Obligations as to Leases .............12 Section 7. Responsibility for Violations .. ',...'..,,..'|2 Section 8. Condemnatior/ Casualty......... l2 Section 9. Covenants of SelIer........... 13 Section 10. Seller's Closing Obligations ....... 14 Section I 1. Purchaser's Closing Obligations. t4 Section 12. Apportionments .......... l5 Section 13. Objections to Title, Failure of Seller or Purchaser to Perform, Vendee's Lien and Contingency............'..... ...r6 Section 14. Broker ...18 Section 15. Notices ...19 Section 16. Limitations on Survival of Representatiotls, Warranties, Covenants and other Obligations................ .............. 1 9 Section 17. Confi dential Information................ .............. 1 9 Section 18. Contingencies ............. ..............20 Section 19. Miscellaneous Provisions ......... ..............20 -1- 4 BZB-Q5QQ:Q9QQ,-v.J49-29:95-6"-Q:-0899',y',J 4878-o560-080 0.-v. 1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 EXHIBITS Exhibit A, DF',SCRIPTION OF PREMISES ............. A-1 Exhibit B. PERMITTED EXCEPTIONS B-l Exhibit C. PURCHASE PzuCE c-l Exhibit D, MISCELLANEOUS D-1 Exhibit E. SERVICE CONTRACTS .......... E-l -2- 4!1,-8:aEAQ:Q99Q-yl{-97-8-*Q599:9--8!-0-';s1!487&0560-080o;-v-1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 Agreement of Purchase and Sale AGREEMENT OF PURCHASE AND SALE ("Agreement") dated May 20, 2022, between The August Aichhorn Center for Adolescent Residential Care, Inc., a New York not-for-profit corporation with a place of business c/o August Aichhorn Center, 15 West 72nd Street, New York, New York 10023 ("Seller") and Liberty Acquisitions LLC, a New York limited liability company with a place of business aI clo Liberty One Group, 88 Pine Street, New York, New York 10005 ("Purchaser") WITNESSETH: WHEREAS, Seller is the owner in fee simple of that certain real property, located in the Borough of Manhattan, City, County and State of New York, known as the street address 23 West 106th Street & 142 Manhattan Avenue, New York, New York 10025 and shown on the tax map of the City of New York as Tax Block 1842, Lots 18 & 19; and WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase the "Premises" (as defined below) upon and subject to all the terms, covenants and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, 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 Agreement: the "Premises", which are defined to include: (a) the parcel of land more particularly described in Exhibit A attached hereto, known as 23 West 106th Street & 142 Manhattan Avenue, New York, New York 10025 (the "Land"), (b) the improvements, structures and fixtures, if any, located on the Land (collectively, the "Improvements"); (c) all of Seller's right, title and interest, if any, in, to and under (i) any land lying in the bed of any street or highway in front of the Land to the center line thereof, (ii) any unpaid award for a taking by condemnation or any other damage to the Land by reason of a change of grade of any street or highway, (iii) any easements and rights of way, appurtenances, strips, gores and other rights pertaining to the Premises, and (iv) all of Seller's right, title and interest, if any, to all other general intangibles relating to the Land, including, but not limited to, all of Seller's right, title and interest to all developments rights, air rights, entitlements, permits, licenses, approvals and agreements belonging, benefiting or pertaining to the Land and the development, construction, ownership, use andlor operation thereof, and (d) all right, title and interest of Seller, if any, in and to the fixtures, equipment and other personal property owned by Seller and attached or appurtenant to the Premises (collectively, the "Personalty"). The street address of the Premises is also set forlh on Exhibit D attached hereto. -3- 4878-0560-0800, v. 1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 $ L02. Seller shall convey, and Purchaser shall accept fee simple title to the premises in accordance with the terms of this Agreement, subject only to: (a) the matters set forth in Exhibit B attached hereto (collectively, "Permitted Exceptions"); and (b) such other matters as any reputable title insurance company licensed to do business in the City of New York shall be willing to approve and insure in accordance with its standard form of title policy approved by the New York State Insurance Department, subject only to the matters provided for in this Agreement. Section 2. Purchase Price, Acceptable Funds, Escrow of Down Payment and Foreign Persons $2.01. The purchase price ("Purchase Price") to be paid by Purchaser to Seller for the Premises is set forth in Exhibit C attached hereto. The parties agtee Ihat the Personalty included in this sale is negligible, and that no portion of the Purchase Price is attributable thereto 52.02. [IntentionallY Omitted]. $2.03. Allmonies payable under this Agreement, unless otherwise specifiei in this Agreement, shall be paid by wire transfer of Purchaser from immediately available federal funds to an account designated by Seller. $2.04. The amount specified under paragraph (a) of Exhibit C or any other sums paid on account of the Purchase Price prior to the Closing (collectively, the "Down pa)iment") are to be paid by wired funds to the order of and delivered to Seller's attomey (or as otherwise agreed CE;g1qfyge") in esciow in a special bank account at TD Bank i".ritirg by Seller, Purchaser and Escrowee) until the Closing or sooner termination of this Agreement and shall pay over or apply such proceeds in accordance with the terms of this section. Any interest accruing on such proceeds in an interest-bearing account, and such interest shall be paid to the same party entitled to the Down Payment. Escrowee shall not be responsible for any interest on the Down Payment, except as is actually earned, or for the loss of any interest resulting from the withdrawal of the Down payment prior to the date interest is posted thereon or for any loss caused by the failure, suip"nsion, bankruptcy or dissolution of the institution in which the Down Payment is deposited. The tax identification numbers of the parties are either set forth in Exhibit D otihull be furnished to Escrowee upon request. At the Closing, such proceeds and the interest thereon, if any, shall be paid by Escrowee to Seller. $2.05. 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 frorn the other party to the proposed payment within seven (7) Business Days (as hereinafter defined) after the giving of such notice, Escrowee is hereby authorized io make such payment. If Escrowee does receive such written objection within such seven (7) Business 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 Agreement ol a final -4- S:Q9Q0 :09!Q,1d4E:7:9*Q599:,Q-89O.r, -v-,.! 4 8-7845 60-080 0' v' 1 49t FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 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 Purchasel. Upon such deposit Escrowee shall be relieved and discharged of all further obligations and responsibilities hereunder. If the Down Pa-,vment is deposited in a money market account, dividends thereon shall be treated, for purposes of this Section, as interest. (a) Intentionally Omitted (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 Down Payment in accordance with the provisions of this Agreement, that Escrowee shall not be deemed to be the agent of either of the parties, and that Escrowee shall not be liable 1o either of the parties for any act or omission on its part unless taken or suffered in bad faith, in willful disregard of this Agreement 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 perfotmance 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 Agreement or involving gross negligence on the part of Escrowee. (c) The duties of Escrowee are purely ministerial. Escrowee shall not have any duties or responsibilities except those set forth in this Agreement and shall not incur any liability in acting upon any signature, notice, request, waiver, consent, receipt or other paper or document believed by Escrowee to be genuine, and Escrowee may assume that any person purpolting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so. (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 Down Payment or any other dispute between the parlies whether or not Escrowee is in possession of the Down Payment and continues to act as Escrowee. (e) Escrowee may act or refi'ain from acting in respect of any matter referred to in this $2.05 in full reliance upon and with the advice of counsel which may be selected by 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. (f) Upon delivery of the Escrow Funds pursuant to this Agreement in accordance with this Agreement, Purchaser and Seller hereby release Escrowee from all obligation and liability hereunder (g) Any notice to Escrowee to be effective for the purpose of providing notice pursuant hereto shall be delivered in accordance with Section l5 of this Agreement. -5- 4!2 8:0jQ,Q,Q8Q0. v, 4,878-Q56O;08 Q0.,,v,,,14878-0560-080 1 0 r v,.:t FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 (h) Intentionally Ornitted. (i) Escrowee has acknowledged agreement to these provisions by signing in the place indicated on the signature page of this Agreement. (j)For the purposes of this Agreement, the term "Business Day", as used herein, means a day of the year on which banks are not required or authorized to close in New York City. $2.06. In the event that Seller fails to deliver a certification of non-foreign status, as defined in Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code") Section 1445 and regulations issued thereunder (collectively, the "Code Withholdine Section"), or in the event that Purchaser is not entitled under the Code Withholding Section to rely on such cerlification, Purchaser shall deduct and withhold from the Purchase Price a sum equal to fifteen percent (15%) 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 fifteen percent (I5%) of the Purchase Price, Purchaser shall have the right to terminate this Agreement, in which event Seller shall refund the Down Payment to Purchaser and shall reimburse Purchaser for any title examination costs as if this Agreement were terminated pursuant to $13.02. The right of termination provided for in this $2.06 shall be in addition to and not in limitation of any other rights or remedies available to Purchaser under applicable law. Section 3. The Closing $3.01. Except as otherwise provided in this Agreement, the closing of title pursuant to this Agreement ("Closing") shall take place on the scheduled date and at the time of closing specified in Exhibit D (the actual date of the Closing being herein referred to as "Closing Date") at the place specified in Exhibit D. Section 4. Representations and Warranties of Seller Seller represents and warrants to Purchaser as follows $4.01 . Seller is the sole owner of the Premises $4.02. Subject to the provisions of Section 18 hereof, Seller has the power and authority to execute, deliver and perform this Agreement and the transaction contemplated hereby. The pelson signing this Agreement on behalf of Seller is authorized to do so. Assuming due authorization, execution and delivery by each other party hereto, this Agreement and all obligations of Seller hereunder are the legal, valid and binding obligations of Seller, enforceable in accordance with the terms of this Agreement, except as such enforcement may be lirnited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights -6- 4Qz!:459S:A-gqq-y148ru--q5-6-Q:9--8p0',v,';1487-8-0560-e800,-v.l FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). $4.03. The execution and delivery of this Agreement 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 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 cany out the terms of this Agreement. Subject to the provisions of Section 18 hereof, Seller has obtained any consent, approval, author.ization or order of any coult or governmental agency or body required for the execution, delivery or performance by Purchaser of this Agreement. $4.04. A copy of the existing service, maintenance and supply contracts ("Service Contracts") with respect to the Premises that will be extant on the Closing Date are attached to Exhibit "E" hereto. If requested by Purchaser, Seller shall have some or all gf the Servig_e- Cqnllapts (as specified by Purchaser) terminated as of the Closing Date upon written request of Purchaser not less than 90 days prior to the anticipated Closing Date, unless such Service Contract is terminable without penalty on such shorler notice as may be given by Purchaser. Seller represents that all such Service Contracts are terminable without,penalty on thirty (30) days notice, except that certain elevator maintenance contract dated April 30,2013 with BP Elevator Co, which is terminable without penalty on ninety (90) days notice. $4.05. Seller has not granted to any person or entity any right of first offer or first refusal or option to purchase, lease or finance any or any portion of the Premises. $4.06. Seller is not a "foreign person" as defined in the Code Withholding Section. $4.07. Seller is a not-for-profit corporation, duly organized and validly and presently existing in good standing under the laws of the State of New York. [See Article 1 81. $4.08. To the best of Seller's knowledge, there is no action, suit, arbitration, unsatisfied order or judgment, go\relnment investigation or proceeding pending against Seller, which, if adversely determined, could individually or in the aggregate materially interfere with the consummation of the transaction contemplated by this Agreement. $4.09. Seller is not 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 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. -7- 4878-0560-0800. v 14878-0560-0800. v, 4aB7-8-0560-080O-v, ;1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 $4.10. Seller (a) is not in receivership or dissolution, (b) has not made an assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature, (c) has not been adjudicated a bankrupt or filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors under the Federal bankruptcy law or any other similar law or statute of the United States or any jurisdiction and no such petition has been filed against Purchaser, and (d) to the best of its knowledge, none of the foregoing are pending or threatened. $4.11. No representations or warranties are made by Seller in connection with the sale or condition of the Premises, other than as expressly set forth in this Agreement. Without limiting the generality of the foregoing and except as provided in this Agreement, Seller has made no wamanty or representation with respect to any of the following items: (i) physical condition of the Premises, which, upon the closing of the transaction described herein, Purchaser shall be deemed to have accepted "as is", (ii) the future prospects of the Premises, including the ability of the owner thereof to obtain an abatement of real estate taxes, (iii) future use or compliance with government programs, (iv) the future census of the Premises or the source or amount of future revenues, (v) the continued existence, interpretation or future effect ofstatutes, rules or regulations affecting or relating to the Premises and its continued operation, (vi) matters of title, (vii) environmental matters relating to the Pr'emises or any portion thereof, including, without limitation, the presence of Hazardous Materials (as hereinafter defined) in, on, under or in the vicinity of the Premises, (viii) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground waterreservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past andlor future faulting, (ix) whether, and to the extent to which the Premises or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (x) drainage, (xi) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (xii) the presence of endangered species or any environmentally sensitive or protected areas, (xiii) zoning or building entitlements to which the Premises or any portion thereof may be subject, (xiv) the availability of any utilities to the Premises or any portion thereof including, without limitation, water, sewage, gas and electric, (xv) usages of adjoining property, (xvi) access to the Premises or any portion thereof, (xvii) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Premises or any porlion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Premises or any paft thereof, (xviii) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (xix) the merchantability of the Premises or fitness of the Premises for any particular purpose, (xx) tax consequences, or (xxi) any other matter or thing with respect to the Premises. Except as may otherwise be expressly set forth in this Agreement, Seller hereby disclaims any warranty or guaranty, oral or written, express or implied or arising by operation of law or otherwise, with respect to the matters referred to in this Section and any warranty of condition, habitability, melchantability or fitness for a particular purpose, in respect to the Premises. Purchaser shall independently determine -8- V-14,8,7.9:Q5-9Q,-Q8 90'',Y,,,,148 78-O5 60-0B00, -v- 4B 7 B:0 560:0 gQ-Q.. 1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 and/or confirm to its satisfaction all information that it considers material to its purchase of the Premises. This Section 4.11 shall survive the Closing or earlier termination of this Agreement. (c) (i) For pulposes hereof, "Hazardous Materials" means "Flazardous Material," "Hazardous Substance," "Pollutant or Contaminant," and "Petroleum" and "Natural Gas Liquids," as those terms ale defined or used in Section 101 of CERCLA, SEQR or CEQR and any other substances regulated under federal, state or local law because of their effect or potential effect on public health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible, and infectious materials. Purchaser as of the Closing Date hereby forever releases and discharges Seller from all responsibility and iiability, including without limitation, liabilities under the Comprehensive Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 96Q1 et seq.), as amended ("CERCLA"), the New York State Environmental Quality Review Act (l\.Y. Environmental Conservation Law $ 8 (McKinney 2011), et g9g.),.as arnended (i:SEQRl') and the New York City Environmental Quality Review (2 RCNY $ 1-04 et seq.), as amended ("CEQR") regarding tl"re condition (including the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Premises under current or future federal, state and local laws, regulations or guidelines), valuation, salability or utility of the Premises, or its suitability for any purpose whatsoever. Purchaser further hereby waives (and by closing this transaction will be deemed to have waived) any and all objections to or complaints regarding (including, but not lirnited to, federal, state and common law based actions), or any private right of action under, state and federal law to which the Premises is or may be subject, including, without limitation, structural and geologic conditions, sulsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Premises. Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Premises and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation. 54.12. The Premises are not subject to any leases, licenses or other rights to occupy, it being understood and agreed that Seller shall be obligated to deliver the Premises to Purchaser in vacant condition at Closing. Any furnishings or other Personalty remaining in the Premises as of the Closing Date shall be deemed abandoned by Seller and Purchaser shall have the right to dispose of same at Purchaser's expense. $4.13. There are no employees cumently employed by Seller at the Premises who will remain employed following the Closing. There are no collective bargaining or union agreements in effect with respect to the Premises. Seller will not enter into any negotiations or execute any contract with a labor union between the effective date hereof and the Closing. -9- 4B7B-0560-0800. v. 14878-0560-0800.v. 14878-0560-0800.v-I FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 54.14. To the best of Seller's knowledge, there is no litigation pending that would adversely affect Seller's ability to perform hereunder. $4.15. Seller has maintained liability insurance coverage throughout its ownership and shall continue to maintain same through Closing. $4.16. To the best of Seller's knowledge, there are no condemnation or eminent proceedings pending or threatened against the Premises. $4.i7. Seller has not transfened or encumbered or agreed to transfer any development or air rights pertaining to the Premises. 54.18. The representations and warranties made by Seller in this Agreement are made as of the date of execution and delivery of this Agreement, and except as otherwise set forth herein, shall be deemed restated and shall be true and accurate on the Closing Date. For purposes of this Section, the phrase "to Seller's knowledge" shall mean the actual knowledge of Michael Pawel without any special investigation. In no event shall Michael Pawel be individually liable for any alleged misrepresentations in connection with the representations and warranties rnade by Purchaser pursuant to this Agreement. Section 5. Acknowledgments, Representations and Warranties of Purchaser Purchaser acknowledges that: $5.01. will have inspected or has had an opportunity to inspect Purchaser the Premises, is fully familiar with the physical condition thereof, and, except as otherwise provided in this Agreement, shall accept the Premises "as is, where is, with all faults" and in their present condition, subject to reasonable use, wear, tear and natural deterioration between now and the Closing Date, without any reduction in the Purchase Price for any change in such condition by reason thereofsubsequent to the date ofthis Agreement. $5.02. Purchaser will have made such examination of the Premises, the operation, any income and expenses thereof and all other matters affecting or relating to this transaction as Purchaser deemed necessary. In entering into this Agreement, 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 pulporting to represent Seller, which are not expressly set forth in this Agreement, whether or not any such representations, warranties or statements were made in writing or verbally. $5.03. Purchaser represents and warrants to Seller that: (a) The funds comprising the Purchase Price to be delivered to Seller in accordance with this Agreement are not derived fiom any illegal activity. -1 0- 4!29:Q-5AA--!.L0!-rl4-929:059-0-:-Q-8-Q0.v"14878-0560-0800'-v.1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 (b) Purchaser has the power and authority to execute, deliver and perform this Agreement and the transaction contemplated hereby. The person signing this Agreement on behalf of Purchaser is authorized to do so. Assuming due authorization, execution and delivery by each other party hereto, this Agreement and all obligations of Purchaser hereunder are the legal, valid and binding obligations of Purchaser, enforceable in accordancelryilh the terms of this Agreement, except as such enforcement may be lirnited 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 Agreement 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 order or decree applicable to Purchaser or 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 ,{greement. P-urchaser 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 Agreement. (d) Purchaser is a lirnited liability company'that has been duly organized and is validly and presently existing in good standing under the laws of the state of its formation and is qualified to do business in the State of New York. (e) As of the date hereof, 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 Agreement. (0 Purchaser is not and is not acting directly or indirectly, for or on behalf of any person, group, entity or nation named by Executive Order ofthe United States Treasury Department as a terrorist, "Specifically Designated National and Blocked Person," or other banned or blocked person, entify, 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) Purchaser (i) is not in receivership or dissolution, (ii) has not made an assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature, (iii) has not been adjudicated a b'ankrupt or filed a petition in voluntary bankruptcy or a petition or answer seeking reorgantzation or an arrangement with creditors under the Federal bankruptcy law or any other similar law or statute of the United States or any jurisdiction and no such petition has been filed against Purchaser, and (iv) to the best of its knowledge, none of the foregoing are pending or threatened. (h) The representations and warranties of Purchaser set forth in this Section 5 are made as of the date of this Agreement and are restated as of the Closing Date. -11- 4B7B-0560-0800 v. 1 4 87-8-O560:0800:rvr::::1 4 878-0560-08O0' v.-1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 For purposes of this Section, the phrase "to Purchaser's knowledge" shall mean the actual knowledge of Jojo Rabinowitz without any special investigation. In no event shall Jojo Rabinowitz be individually liable for any alleged misrepresentations in connection with the representations and warranties made by Purchaser pursuant to this Agreement. Section 6. Seller's Obligations as to Leases. $6.01 . There are no existing Leases with respect to the Premises, and Seller shall not enter into any such Leases prior to Closing hereunder. Section 7. Responsibility for Violations. $7.01. Purchaser shall accept title to the Premises subject to any and all notes or notices of violations of law or governmental ordinances, orders or requirements which were noted or issued prior to the date of this Agreement by any governmental department, agency or bureau having jurisdiction as to conditions affecting the Premise pursuant to the Administrative Code of the City ofNew York. All such notes or notices of violations noted or issued on or after the date of this Agreement shall also be the sole responsibility of Purchaser. Seller shall be obligated to satis$ all monetary violations and all administrative fines and penalties issued by any government agency or to establish a mutually acceptable escrow to cover the cost of removing such fines and penalties, if any. Section 8. Condemnation/Casualty. $S.01. In the event of the institution of any proceedings by any governmental authority which shall relate to the proposed taking of any portion of the Premises by eminent domain prior to the Closing, or in the event of the taking of any portion of the Premises by eminent domain prior to the Closing, Seller shall promptly notify Purchaser in writing no later than two (2) Business Days after Seller's receipt of any notification. Purchaser shall thereafter have the right and option to terminate this Agreement 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 Agreement, Purchaser shall be entitled to receive the Down Payment from Escrowee and this Agreement shall thereupon be terminated and become void and of no further effect, and neither party hereto shall have any obligations ofany nature to the other hereunder or by reason hereof, except for those obligations and liabilities that are expressly stated to survive termination of this Agreement. If Purchaser does not elect to terminate this Agreement, the parties hereto shall proceed to the Closing and at the Closing, Seller shall assign to Purchaser all of its right, title and interest in all awards in connection with such taking. The provisions of this Section 8 shall survive the Closing. -12- 4B7B-0 560 -0 B0 0 v. 1 4-9-l-g-Q59-0-,Q9-0-Q' v.; ;l 4 8 78-0560-0800. v- 1 FILED: NEW YORK COUNTY CLERK 08/28/2023 06:53 PM INDEX NO. 158537/2023 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/28/2023 $8.02. (a) Notwithstanding the provision of New York law to the contrary, including without limitation Section 5-1311 of the General Obligations Law, pertaining to risk of loss in the event of a fire or other casualty prior to the Closing, if all or any portion the Premises is damaged by fire or other casualty, (i) Purchaser shall purchase the Prernises in its "as is" condition at Closing, (ii) Seller shall assign the proceeds of Seller''s casualty insurance, if any, cr the rights undei' such insurancc policies thereof, less any expenditures actually and reasonably incurred by Seller in connection with rendering the Premises safe to the publi