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Fillable Printable Contract of Sale - Cooperative Apartment

Fillable Printable Contract of Sale - Cooperative Apartment

Contract of Sale - Cooperative Apartment

Contract of Sale - Cooperative Apartment

Contract of sale cooperative apartment.7-2001
Prepared bythe Committee on Condominiumand Cooperative ofthe Real PropertySection ofthe New York State Bar Association
CONSULT YOUR LAWYER BEFORE SIGNING THIS AGREEMENT
Contract of Sale - Cooperative Apartment
This Contractismade asofbetween the"Seller"andthe"Purchaser"identifiedbelow.
1 Certain Definitions and Information
1.1 The "Parties" are:
1.1.1 "Seller":1.1.2 "Purchaser":
Prior names used by Sell er:
Address:
Address:
S.S. No.:
S.S. No.:
1.2 The "Attorneys" are(name, firmname,addressandtelephone, fax):
1.2.1 "Seller's Attorney"
1.2.2 "Purchaser's Attorney"
1.3 The "Escrowee" is the [Seller's] [Purchaser's] Attorney.
1.4 The Managing Agent is (name, address and
telephone , fax):
1.5 Thereal estate "Broker(s)"(see ¶ 12)is/are:
1.6 The nameof the cooperative housingcorporation
("Corporation") is:
1.7 The "Unit" number is:
1.8 TheUnit is located in"Premises" known as:
1.9TheSharesarethesharesofthe
Corporation allocated to the Unit.
1.10 The "Lease" is the Corporation's proprietary lease
or occupancy agreement for the Unit, given by the
Corporati o n w hi ch e x pi res o n
1.11 "Personalty" is the following personal property, to
the extent existing in the Unit on the date hereof: the
refrigerators, freezers,ranges, ovens,built-in
microwave ovens, dishwashers, garbage disposal units,
cabinets and counters, lighting fixtures, chandeliers,
wall-to-wall carpeting, plumbing and heating fixtures,
central air-conditioning and/or window or sleeve units,
washing machines, dryers, screens an d storm windows,
window treatments, switch plates, door hardware,
mirrors, built-ins not excluded in ¶ 1.12 and
1.12 Specifically exclud ed from this sale is all personal
property not included in ¶ 1.11 and:
1.13 The sale [does] [does not] include Seller's interest
in [Storage]/ [Servant's Room]/ [Parking Space]
("Included Interests")
1.14 The "Closing" is the transfer of ownership of the
Shares and Lease.
1.15 The date scheduled for Closing is
("Scheduled Closing Date")
at .M (See ¶¶ 9 and 10)
1.16 The "Purchase Price" is: $
1.16.1 The "Contract Deposit" is: $
1.16.2 The "Balance" of the Purchase Price
due at Closing is: (See ¶ 2.2.2)
1.17 The monthly "Maintenance" charge is $
(See ¶ 4)
1.18 The "Assessment", if any, payable to the
Corporation, at the date of this Contract is $ ,
payable as follows:
1.19 [Seller] [Purchaser] shall pay the Corporation's
flip tax, transfer fee (apart from the transfer agent fee)
and/or waiver of option fee (“Flip Tax”), if any.
1.20 Financing Options (Delete two of the following ¶¶
1.20.1 , 1. 20 .2 or 1.20.3)
1.20.1 Purchaser may apply for financing in
connection with this sale and Purchaser's obligation to
purchase under this Contract is contingent upon
issuance of a Loan Commitment Letter by the Loan
Commitment Date (¶18 .1.2).
1.20.2 Purchaser may apply for financing in
connection with this sale but Purchaser's obligation to
purchase under this Contract is not contingent upon
issuance of a Loan Commitment letter.
1.20.3 Purchaser shall not apply for financing
in connection with this sale.
1.21 If ¶ 1.20.1 or 1.20.2 apllies, the "Financing Terms"
for 18 are: a loan of $ for a term of
years or such lesser amount or shorter term as
appliedfor or acceptable to Purchaser; andthe
"LoanCommitmentDate"for18is
calendardays after theDelivery Date.
1.22The "Delivery Date" of this Contract is the date on
which a fully executed counterpart of this Contract is
deemed given to and received by Purchaser or
Purchaser's Attorney as provided in ¶ 17.3.
1.23 All "Proposed Occupants" of the Unit are:
1.23.1personsandrelationship toPurchaser:
1.23.2 pets:
1.24 The Contract Deposit shall be held in [a non-]
[an] IOLA escrow account. If the account is a non-
IOLA account then interest shall be paid to the Party
entitled to the Contract Deposit. The Party receiving
the interest shall pay any income taxes thereon. The
escrow account shall be a segregated bank account at
Depository:
Address: (See ¶ 27)
1.25 This Contract is [not] continued on attached
rider(s).
2 Agreement to Sell and Purchase; Purchase Price;
Escrow
2.1 Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase fromSeller, the Seller's Shares,
Lease, Personalty and any Included Interests and all
other items included in th is sale, for the Purchase Price
and upon the terms and conditions set forth in this
Contract.
2.2 The Purchase Price is payable to Seller by
Purchaser as follows:
2.2.1 the Contract Deposit at the time of
signing this Contract by Purchaser's good check to the
order of Escrowee; and
2.2.2 the Balance at Closing, only by cashier's
or official bank check or certified check of Purchaser
payable to the direct order of Seller. The check(s) shall
be drawn on and payable by a branch of a commercial
or savings bank, savings and loan association or trust
company located in the same City or County as the
Unit. Seller may direct, on reasonable Notice (defined
in ¶ 17) prior to Closing, that all or a portion of the
Balance shall be made payable to persons other than
Seller (see ¶ 17.7).
3 Personalty
3.1 Subject to any rights of the Corporation or any
holder of a mort-gage to which the Lease is
subordinate, this sale includes all of the Seller's
interest, if any, in the Personalty and the Included
Interests.
3.2 No co nsideration is being paid for th e Personalty or
for the Included Interests; nothing shall be sold to
Purchaser if the Closing does not occur.
3.3 Prior to Closing, Seller shall remove from the Unit
all the furniture, furnishings and other property not
included in this sale, and repair any damage caused by
such removal.
4 Representations and Covenants
4.1 Subject to any matter affecting title to the Premises
(as to which Seller makes no representations or
covenants), Seller represents and covenants that:
4.1.1 Seller is, and shall at Closing be, the sole
owner of the Shares, Lease, Personalty and Included
Interests, with the full right, power and au thority to sell
and assign them. Seller shall make timely provision to
satisfy existing security interest(s) in the Shares and
Lease and have the same delivered at Closing (See ¶
10.1);
4.1.2 the Shares were duly issued, fully paid
for and are non-assessable;
4.1.3 the Lease is, and will at Closing be, in
full force and effect and no notice of default under the
Lease is now or will at Closing be in effect;
4.1.4 the Maintenance and Assessments
payable as of the date hereof are as specified in ¶ 1.17
and 1.18;
4.1.5 as of this date, Seller neither has actual
knowledge nor has received any written notice of any
increase in Maintenance or any Assessment which has
been adopted by the Board of Directors of the
Corporation and is not reflected in the amounts set
forth in ¶¶ 1.17and l.l 8;
4.1.6 Seller has not made any material
alterations or add ition s to th e Unit without an y required
consent of the Corporation or, to Seller's actual
knowledge, without compliance with all applicable
law. This provision shall not survive Closing.
4.1.7 Seller has not entered into, shall not
enter into, and has no actual knowledge of any
agreement (other than the Lease) affecting title to the
Unit or its use and/or occupancy after Closing, or
which would be binding on or adversely affect
Purchaser after Closing (e.g. a sublease or alteration
agreement);
4.1.8 Seller has been known by no other name
for the past 10 years except as set forth in ¶ 1.1.1.
4.1.9 at Closing in accordance with ¶ 15.2:
4.1.9.1 there shall be no judgments
outstanding against Seller which have not been bonded
against collection out of the Unit
("Judgments");
4.1.9.2 the Shares, Lease, Personalty
and any Included Interests shall be free and clear of
liens (other than the Corporation's general lien on the
Shares for which no monies shall be owed),
encumbrances and adverse interests ("Liens");
4.1.9.3 all sums due to the
Corporation shall be fully paid by Seller to the end of
the payment period immediately preceding the date of
Closing;
4.1.9.4 Seller shall not be indebted
for labor or material which might give rise to the filing
of a notice of mechanic's lien against the Unit or the
Premises; and
4.1.9.5 no violations shall be of
record which the owner of the Shares and Lease would
be obligated to remedy under the Lease.
4.2 Purchaser represents and covenants that:
4.2.1 Purchaser is acquiring the Shares and
Lease for residential occupancy of the Unit solely by
the Proposed Occupants iden tified in ¶ 1.23
4.2.2 Purchaser is not, and within the past 7
years has not been, the subject of a bankruptcy
proceeding;
4.2.3 if ¶ 1.20.3 applies, Purchaser shall not
apply for fi nancing in con nection with t his p urc hase.
4.2.4 Each individual comprising Purchaser is
over the age of 18 and is purchasing for Purchaser's
own account (beneficial and of record);
4.2.5 Purchaser shall not make any
representations to the Corporation contrary to the
foregoing and shall provide all documents in support
thereof required by the Corporation in connection with
Purchaser's application for approval of this transaction;
and
4.2.6 there are not now and shall not be at
Closing any unpaid tax liens or monetary judgments
against Purchaser.
4.3 Each Party covenants that its representations and
covenants contained in ¶ 4 shall be true and complete
at Closing and, except for ¶ 4.1.6, shall survive Closing
but any action based thereon must be instituted within
one year after Closing.
5 Corporate Documents
Purchaser has examined and is satisfied with, or
(except as to an y matter represented in this Contract by
Seller) accepts and assumes the risk of not having
examined, the Lease, the Corporation's Certificate of
Incorporation, By-laws, House Rules, minutes of
shareholders' and directors' meetings, most recent
audited financial statement and most recent statement
of tax deductions available to the Corporation's
shareholders under Internal Revenue Code ("IRC")
§216 (or any successor statute).
6 Required Approval and References
6.1 This sale is subject to the unconditional consent of
the Corporation.
6.2 Purchaser shall in good faith:
6.2.1 submit to the Corporation or the
Managing Agen t an app licatio n with respect to th is sale
on the form required by the Corporation, containing
such data and together with such documents as the
Corporation requires, and pay the applicable fees and
charges that the Corporation imposes upon Purchaser.
All of the foregoing shall be submitted within 10
business days after the Delivery Date, or, if ¶ 1.20.1 or
1.20.2 applies and the Loan Commitment Letter is
required by the Corporation, within 3 business days
after the earlier of (i) the Loan Commitment Date
(defined in ¶ 1.21) or (ii) the date of receipt of the
Loan Commitment Letter (defined in ¶ 18.1.2);
6.2.2 attend (and cause any Proposed
Occupant to attend) one or more personal interviews,
as requested by the Corporation; and
6.2.3 promptly submit to the Corporation such
further references, data and documents reasonably
requested by the Corporation.
6.3 Either Party, after learning of the Corporation's
decision, shall promptly advise the other Party thereof.
If the Cor poration has not made a decision on or b efore
the Scheduled Closing Date, the Closing shall be
2
adjourned for 30 business days for the purpose of
obtaining such consent. If such consent is not given by
such adjourned date, either Party may cancel this
Contract by Notice, provided that the Corporation’s
consent is not issued before such Notice of cancellation
is given. If such consent is refused at any time, either
Party may cancel this Contract by Notice. In the event
of cancellation pursuant to this ¶ 6.3, the Escrowee
shall refund the Contract Deposit to Purchaser.
6.4 If such consent is refused, or not given, due to
Purchaser's bad faith conduct. Purchaser shall be in
default and ¶ 13.1 shall govern.
7 Conditi on of Unit and Pers onalty; Possession
7.1 Seller makes no representation as to the physical
condition or state of repair of the Unit, the Personalty,
the Included Interests or the Premises. Purchaser has
inspected or waived inspection of the Unit, the
Personalty and the Included Interests and shall take the
same "as is", as of the date of this Contract, except for
reasonable wear and tear. However, at the time of
Closing, the appliances shall be in working order and
required smoke detector(s) shall be installed and
operable.
7.2 At Closing, Seller shall deliver possession of the
Unit, Personalty and Includ ed Interests in the condition
required by ¶ 7.1, broom-clean, vacant and free of all
occupants and righ ts of possession.
8 Risk of Loss
8.1 The provisions of General Obligations Law § 5-
1311, as modified herein, shall apply to th is transaction
as if it were a sale of realty. For purposes of this
paragraph , the term "Unit" inclu des built-in Personalty.
8.2 Destruction shall be deemed "material" under GOL
§ 5-1311, if the reasonably estimated cost to restore the
Unit shall exceed 5% of the Purchase Price.
8.3 In the event of any destruction of the Unit or the
Premises, when neither legal title nor the possession of
the Unit has been transferred to Purchaser, Seller shall
give Notice of the loss to Pu rchaser ("Loss Notice") by
the earlier of the date of Closing or 7 business days
after the date of the loss.
8.4 If there is material destruction of the Unit without
fault of Purchaser, this Contract shall be deemed
canceled in accordance with ¶ 16.3, unless Purchaser
elects by Notice to Seller to complete the purchase with
an abatement of the Purchase Price; or
8.5 Whether or not there is any destruction of the Unit,
if without fault of Purchaser, more than 10% of the
units in the Premises are rendered uninhabitable, or
reasonable access to the Unit is not available, then
Purchaser shall h ave the right to cancel th is Contract in
accordance with ¶ 16.3 by Notice to Seller.
8.6 Purchaser's Notice pursuant to ¶ 8.4 or ¶ 8.5 shall
be given within 7 business days following the giving of
the Loss Notice except that if Seller does not give a
Loss Notice, Purchaser's Notice may be given at any
time at or prior to Closing.
8.7 In the event of any destruction of the Unit,
Purchaser shall not be entitled to an abatement of the
Purchase Price (i) that exceeds the reasonably
estimated cost of repair and restoration or (ii) for any
loss that the Corporation is obliged to repair or restore;
but Seller shall assign to Purchaser, without recourse,
Seller's claim, if any, against the Corporation with
respect to such loss.
9 Closin g L ocation
The Closing shall be held at the location designated by
the Corporation or, if no such designation is made, at
the office of Seller's Attorney. ^
10 Closing
10.1 At Closing, Seller shall deliver or cause to be
delivered:
10.1.1 Seller's certificate for the Shares duly
endorsed for transfer to Purchaser or accompanied by a
separate duly executed stock power to Purchaser, and
in either case, with any guarantee of Seller's signature
required by the Corporation ;
10.1.2 Seller's counterpart original of the
Lease, all assignments and assumptions in the chain of
title and a duly executed assignment thereof to
Purchaser in the form required by the Corporation;
10.1.3 FIRPTA documents required by ¶ 25;
10.1.4 keys to the Unit, building entrance(s),
and, if applicable, garage, mailbox, storage unit and
any locks in the Unit;
10.1.5 if requested, an assignment to
Purchaser of Seller's interest in the Personalty and
Include d Inte rests;
10.1.6 any documents and payments to
comply with ¶ 15.2
10.1.7 If Seller is unable to deliver the
documents required in
¶ 10.1.1 or 10.1.2 then Seller shall deliver or cause to
be delivered all documents and payments required by
the Corpor ation fo r the issuan ce of a new certificate for
the Shares or a new Lease.
10.2 At Closing, Purchaser shall:
10.2.1 pay the Balance in accordance with ¶
2.2.2;
10.2.2 execute and deliver to Seller and the
Corporation an agreement assuming the Lease, in the
form required by the Corporation; and
10.2.3 if requested by the Corporation,
execute and deliver counterparts of a new lease
substantially the same as the Lease, for the balance of
the Lease term, in which case the Lease shall be
canceled and surrendered to the Corporation together
with Seller's assignment thereo f to Purchaser.
10.3 At Closing, the Parties shall complete and execute
all documents necessary:
10.3.1 for Internal Revenue Service ("IRS")
form 1099-S or other similar requirements;
10.3.2 to comply with smoke detector
requirements and any applicable transfer tax filings;
and
10.3.3 to transfer Seller's interest, if any, in
and to the Personalty and Included Interests.
10.4 Purchaser shall not be obligated to close unless, at
Closing, th e Corporation delivers:
10.4.1 to Purchaser a new certificate for the
Shares in the name of Purchaser; and
10.4.2 a written statement by an officer or
authorized agent of the Corporation consenting to the
transfer of the Shares and Lease to Purchaser and
setting forth the amounts of and payment status of all
sums owed by Seller to the Corporation, including
Maintenance and any Assessments, and the dates to
which each has been paid.
11 Closing Fees, Taxes and Apportionments
11.1 At or prior to Closing,
11.1.1 Seller shall pay, if applicable:
11.1.1.1 the cost of stock transfer
stamps; and
11.1.1.2 transfer taxes, except as set
forth in ¶ 11.1.2.2
11.1.2 Purchaser shall p a y, if app licable:
11.1.2.1 any fee imposed by the
Corporation relating to Purchaser's financing; and
11.1.2.2 transfer taxes imposed by
statute primarily on Purchaser (e.g., the "mansion tax"),
11.2 The Flip Tax, if any, shall be paid by the Party
specified in ¶ 1.19.
11.3 Any fee imposed by the Corporation and not
specified in this Contract shall be paid by the Party
upon whom such fee is expressly imposed by the
Corporation, and if no Party is specified by the
Corporation, then such fee shall be paid by Seller.
11.4 The Parties shall apportion as of 11:59 P.M. of the
day preceding the Closing, the Maintenance, and any
other periodic charges due the Corporation (other than
Assessments) and STAR Tax Exemption (if the Unit is
the beneficiary of same), based on the number of the
days in the month of Closing.
11.5 Assessments, whether payable in a lump sum or
installments, shall no t be apportioned, bu t shall be paid
by the Party who is the owner of the Shares on the date
specified by the Corporation for payment. Purchaser
shall pay any installments payable after Closing
3
provided Seller had the right and elected to pay the
Assessment in installments.
11.6 Each Party shall timely pay any transfer taxes for
which it is pr imarily liable p ursu ant to law b y cashier's,
official bank, certified or attorney's escrow check. This
¶ 11.6 shall survive Closing.
11.7 Any computational errors or omissions shall be
corrected within 6 months after Closing. This ¶11.7
shall survive Closing.
12 Broker
12.1 Each Party repr esents that such Party has not dealt
with any person acting as a broker, whether licensed or
unlicensed, in connection with this transaction other
than the Broker(s) named in ¶ 1.5.
12.2 Seller shall pay the Broker's commission pursuant
to a separate agreement The Broker(s) shall not be
deemed to be a third-party beneficiary of this Contract.
12.3 This ¶12 shall survive Closing, cancellation or
termination of this Contract.
13 Defaults, Remedies and Indemnities
13.1 In the event of a default or misrepresentation by
Purchaser, Seller's sole and exclusive remedies shall be
to cancel this Contract, retain the Contract Deposit as
liquidated damages and, if applicable, Seller may
enforce the indemnity in ¶ 13.3 as to brokerage
commission or sue under ¶ 13.4. Purchaser prefers to
limit Purchaser's exposure for actual damages to the
amount of the Contract Deposit, which Purchaser
agrees constitutes a fair and reasonable amount of
compensation for Seller's damages under the
circumstances and is not a penalty. The principles of
real property law shall app ly to this liquidated d amages
provision.
13.2 In the event of a default or misrepresentation by
Seller, Purchaser shall have such remedies as Purchaser
is entitled to at law or in equity, including specific
performance, because the Unit and possession thereof
cannot be duplicated.
13.3 Subject to the provisions of ¶ 4.3, each Party
indemnifies and holds harmless the other against and
from any claim, judgment, loss, liability, cost or
expense resulting from the indemnitor's breach of any
of its representations or covenants stated to survive
Closing, cancellation or termination of this Contract.
Purchaser indemnifies and holds harmless Seller
against and from any claim, judgment, loss, liability,
cost or expense resulting from the Lease obligations
accruing from and after the Closing. Each indemnity
includes, without limitation, reasonable attorneys' fees
and disbursements, court costs and litigation expenses
arising from the defense of any claim and enforcement
or collection of a judgment under this indemnity,
provided the indemnitee is given Notice and
opportunity to defend the claim. This ¶ 13.3 shall
survive Closing, cancellation or termination of this
Contract.
13.4 In th e event any instrumen t for the payment of th e
Contract Deposit fails of collection, Seller shall have
the right to sue on the uncollected instrument. In
addition, such failure of collection shall be a default
under this Contract, provided Seller gives Purchaser
Notice of such failure of collection and, within 3
business days after Notice is given, Escrowee does not
receive from Purchaser an unendorsed good certified
check, bank check or immediately available funds in
the amount of the uncollected funds. Failure to cure
such default shall en title Seller to the remedies set forth
in ¶ 13.1 and to retain all sums as may be collected
and/or recovered.
14 Entire Agreement; Modification
14.1 All prior oral or written representations,
understandings and agreements had between the Parties
with respect to the subject matter of this Contract, and
with the Escrowee as to ¶ 27, are merged in this
Contract, which alone fully and completely expresses
the Parties’ and Escrowee's agreement.
14.2 The Attorneys may extend in writing any of the
time limitations stated in this Contract. Any other
provision of this Contract may be changed or waived
only in writing signed by the Party or Escrowee to be
charged.
15 Removal of Liens and Judgments
15.1 Purchaser shall deliver or cause to be delivered to
Seller or Seller's Attorney, not less than 10 calendar
days prior to the Scheduled Closing Date a Lien and
Judgment search, except that Liens or Judgments first
disclosed in a continuation search shall be reported to
Seller within 2 business days after receipt thereof, but
not later than the Closing. Seller shall have the right to
adjourn the Closing pursuant to ¶ 16 to remove any
such Liens and Judgments. Failure by Purchaser to
timely deliver such search or continuation search shall
not constitute a waiver of Seller's covenants in ¶4 as to
Liens and Judgments. However, if the Closing is
adjourned solely by reason of untimely delivery of the
Lien and Judgment search, the apportionments under ¶
11.3 shall be made as of 11:59 P.M. of the day
preceding the Scheduled Closing Date in ¶ 1.15.
15.2 Seller, at Seller's expense, shall obtain and deliver
to the Purchaser the documents and payments
necessary to secure the release, satisfaction,
termination and discharge or removal of record of any
Liens and Judgmen ts. Seller may use any portion of the
Purchase Price for such purposes.
15.3 This ¶ 15 shall survive Closing.
16 Seller’s Inability
16.1 If Seller shall be unable to transfer the items set
forth in ¶ 2.1 in accordance with this Contract for any
reason other than Seller's failure to make a required
payment or other willful act or omission, then Seller
shall have the right to adjourn the Closing for periods
not exceeding 60 calendar days in the aggregate, but
not extending beyond the expiration of Purchaser's
Loan Commitment Letter, if ¶ 1.20.1 or 1.20.2 applies.
16.2 If Seller does not elect to adjourn the Closing or
(if adjourned) on the adjourned date of Closing Seller
is still unable to perform, then unless Purchaser elects
to proceed with the Closing without abatement of the
Purchase Price, either Party may cancel this Contract
on Notice to the other Party given at any time
thereafter.
16.3 In the event of such cancellation, the sole liability
of Seller shall be to cause the Contract Deposit to be
refunded to Purchaser and to reimburse Purchaser for
the actual costs incurred for Purchase's lien and title
search, if any.
17 Notices and Contract Delivery
17.1 Any notice or demand ("Notice") shall be in
writing and delivered either by hand. overnight
delivery or certified or registered mail, return receipt
requested, to the Party and simultaneously, in like
manner, to such Party's Attorney, if any, and to
Escrowee at their respective addresses or to such other
address as shall hereafter be designated by Notice
given pursuant to this ¶ 17.
17.2 The Contract may be delivered as provided in ¶
17.1 or by or dinary mai l .
17.3 The Contract or each Notice shall be deemed
given and received:
17.3.1 on the day delivered by hand;
17.3.2 on the business day following the date
sent by overnight delive ry ;
17.3.3 on the 5th business day following the
date sent by certified or registered mail; or
17.3.4 as to the Contract only, 3 business
days following the date of ordinary mailing.
17.4 A Notice to Escrowee shall be deemed given only
upon actual receipt by Escrowee.
17.5 The Attorneys are authorized to give and receive
any Notice on behalf of t heir respective clients.
17.6 Failure or refusal to accept a Notice shall not
invalidate the Notice.
17.7 Notice pursuant to ¶¶ 2.2.2 and 13.4 may be
delivered by confirmed facsimile to the Party's
Attorney and shall be deemed given when transmission
is confirmed by sender's facsimile machine.
18 Financing Provisions
18.1 The provisions of ¶¶ 18.1 and 18.2 are applicable
only if ¶ l.20.1or 1.20.2 applies.
4
18.1.1 An "Institutional Lender" is any of the
following that is authorized under Federal or New
York State law to issue a loan secured by the Shares
and Lease and is currently extending similarly secured
loan commitments in the county in which the Unit is
located: a bank, savings bank, savings and loan
association, trust company, credit union of which
Purchaser is a member, mortgage banker, insurance
company or governmental entity.
18.1.2 A "Loan Commitment Letter" is a
written offer from an Institutional Lender to make a
loan on the Financing Terms (see ¶ 1.21) at prevailing
fixed or adjustable interest rates and on other
customary terms generally being offered by
Institutional Lenders making cooperative share loans.
An offer to make a loan conditional upon obtaining an
appraisal satisfactory to the Institutional Lender shall
not become a Loan Commitment Letter unless and
until such condition is met. An offer conditional upon
any factor concerning Purchaser (e.g. sale of current
home, payment of outstanding debt, no material
adverse change in Purchaser's financial condition, etc.)
is a Loan Commitment Letter whether or not such
condition is met. Purchaser accepts the risk that, and
cannot cancel this Contract if, any condition
concerning Purchaser is not met.
18.2 Purchaser, directly or through a mortgage broker
registered pursuant to Article 12-D of the Banking
Law, shall diligently and in good faith:
18.2.1 apply only to an Institutional Lender
for a loan on
the Financing Terms (see ¶ 1.21) on the form required
by the Institutional Lender containing truthful and
complete information, and submit such application
together with such documents as the Institutional
Lender requires, and pay the applicable fees and
charges of the Institutional Lender, all of which shall
be performed within 5 business days after the Delivery
Date;
18.2.2 promptly submit to the Institutional
Lender such further references, data and documents
requested by the Institutional Lender; and
18.2.3 accept a Loan Commitment Letter
meeting the Financing Terms and comply with all
requirements of such Loan Commitment Letter (or any
other loan commitment letter accepted by Purchaser)
and of the Institutional Lender in order to close the
loan; and
18.2.4 furnish Seller with a copy of the Loan
Commitment Letter promptly after Purchaser's receipt
thereof.
18.2.5 Purchaser is not required to apply to
more than one Institutional Lender.
18.3 If ¶ 1.20.1 applies, then
18.3.1 provided Purchaser has complied with
all applicable provisions of ¶ 18.2 and this ¶ 18.3,
Purchaser may cancel this Contract as set forth below,
if:
18.3.1.1 any Institutional Lender
denies Purchaser's application in writing prior to the
Loan Commitment Date (see ¶ 1.21); or
18.3.1.2 a Loan Commitment Letter
is not issued by the Institutional Lender on or before
the Loan Commitment Date; or
18.3.1.3 any requirement of the Loan
Commitment Letter other than one concerning
Purchaser is not met (e.g. failure of the Corporation to
execute and deliver the Institutional Lender's
recognition agreement or other document, financial
condition of the Corporation, owner occupancy quota,
etc.); or
18.3.1.4 (i) the Closing is adjourned
by Seller or the Corporation for more than 30 business
days from the Scheduled Closing Date and (ii) the
Loan Commitment Letter expires on a date more than
30 business days after the Scheduled Closing Date and
before the new date set for Closing pursuant to this
paragraph and (iii) Purchaser is unable in good faith to
obtain from the Institu tional Lender an ex tension of th e
Loan Commitment Letter or a new Loan Commitment
Letter on the Financing Terms without paying
additional fees to the Institutional Lender, unless Seller
agrees, by Notice to Purchaser within 5 business days
after receipt of Purchaser's Notice of cancellation on
such ground, that Seller will pay such additional fees
and Seller pays such fees when due. Purchaser may not
object to an adjournment by Seller for up to 30
business days solely because the Loan Commitment
Letter would expire before such adjourned Closing
date.
18.3.2 Purchaser shall deliver Notice of
cancellation to Seller within 5 business days after the
Loan Commitment Date if cancellation is pursuant to ¶
18.3.1.1 or 18.3.1.2 and on or prior to the Scheduled
Closing Date if cancellation is pursuant to ¶ 18.3.1.3 or
18.3.1.4.
18.3.3 If cancellation is pursuant to ¶ 18.3.1.1,
then Purchaser shall deliver to Seller, together with
Purchaser's Notice, a copy of the Institutional Lender's
written denial of Purchaser's loan application. If
cancellation is pursuant to ¶ 18.3.1.3, then Purchaser
shall deliver to Seller together with Purchaser's Notice
evidence that a requirement of the Institutional Lender
was not m et .
18.3.4 Seller may cancel this Contract by
Notice to Purchaser, sent within 5 days after the Loan
Commitment Date, if Purchaser shall not have sent bv
then either (i) Purchaser's Notice of cancellation or (ii)
a copy of the Loan Commitment Letter to Seller, which
cancellation shall become effective if Purchaser does
not deliver a copy of such Loan Commitment Letter to
Seller within 10 business days after the Loan
Commitment Date.
18.3.5 Failure by either Purchaser or Seller to
deliver Notice of cancellation as required by this ¶ 18.3
shall constitute a waiver of the right to cancel under
this ¶ 18.3.
18.3.6 If this Contract is canceled by
Purchaser pursuant to this ¶ 18.3, then thereafter
neither Party shall have any further rights against, or
obligations or liabilities to, the other by reason of this
Contract, except that the Contract Deposit shall be
promptly refunded to Purchaser and except as set forth
in ¶ 12. If this Contract is canceled by Purchaser
pursuant to ¶ 18.3.1.4, then Seller shall reimburse
Purchaser for any non-refundable financing and
inspection expenses and other sums reimbursable
pursuant t o ¶ 1 6.
18.3.7 Purchaser cannot cancel this Contract
pursua nt to ¶ 18.3.1.4 and canno t obtain a refund of the
Contract Deposit if the Institutional Lender fails to
fund the loan:
18.3.7.1 because a requirement of the
Loan Commitment Letter concerning Purchaser is not
met (e.g., Purchaser's financial condition or
employment status suffers an adverse change;
Purchaser fails to satisfy a co ndition relating to the sale
of an existing residence, etc.) or
18.3.7.2 due to the expiration of a
Loan Commitment Letter issued with an expiration
date that is not more than 30 business days after the
Scheduled Closing Date.
19 Singular/Plura l an d Joint/Several
The use of the singular shall be deemed to include the
plural and vice versa, whenever the context so requires.
If more than one person con stitutes Seller or Purchaser,
their obligations as such Party shall be joint and
several.
20 No Survival
No representation and/or covenant contained herein
shall survive Closing except as expressly provided.
Payment of the Balance sh all co nstitute a d isch arg e and
release by Purchaser of all of Seller's obligations
hereunder except those expressly stated to survive
Closing.
21 Inspections
Purchaser and Purchaser's representatives shall have
the right to inspect the Unit within 48 hours prior to
Closing, and at other reasonable times upon reasonable
request to Seller.
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22 Governing Law and Venue
This Contract shall be governed by the laws of the
State of New York without regard to principles of
conflict of laws. Any action or proceeding arising out
of this Contract shall be brought in the county or
Federal district where the Unit is located and the
Parties hereby consent to said venue.
23 No Assignment by Purchaser; Death of
Purchaser
23.1 Purchaser may not assign this Contract or any of
Purchaser's rights hereunder. Any such purported
assignment shall be null and void.
23.2 This Contract shall terminate upon the death of all
persons comprising Purchaser and the Contract Deposit
shall be refunded to the Purchaser. Upon making such
refund and reimbursement, neither Party shall have any
further liability or claim against the other hereunder,
except as set forth in ¶ 12.
24 Cooperation of Parties
24.1 The Parties shall each cooperate with the other,
the Corporation and Purchaser's Institutional Lender
and title company, if any, and obtain, execute and
deliver such documents as are reasonably necessary to
consummate this sale.
24.2 The Parties shall timely file all required
documents in connection with all governmental filings
that are required by law. Each Party represents to the
other that its state ments in such filing s sh all be tru e and
complete. This ¶ 24.2 shall survive Closing.
25 FIRPTA
The parties shall comply with IRC §§ 897, 1445 and
the regulations thereunder as same may be amended
("FIRPTA"). If applicable, Seller shall execute and
deliver to purchaser at Closing a Certification of Non-
Foreign Status ("CNS") or deliver a Withholding
Certificate from the IRS. If Seller fails to deliver a
CNS or a Withholding Certificate, Purchaser shall
withhold from the Balance, and remit to the IRS, such
sum as may be required by law. Seller hereby waives
any right of action against Purchaser on account of
such withholding and remittance. This ¶ 25 shall
surviv e Closing.
26 Additional Requirements
26.1 Purchaser sh all not be obligated to close unless all
of the following requirements are satisfied at the time
of the Closing:
26.1.1 the Corporation is in good standing;
26.1.2 the Corporation has fee or leasehold
title to the Premises, whether or not marketable or
insurable; and
26.1.3 there is no pending in rem action, tax
certificate/lien sale or foreclosure action of any
underlying mortgage affecting the Premises.
26.2 If any requirement in ¶ 26.1 is not satisfied at the
time of the Closing, Purchaser shall give Seller Notice
and if the same is not satisfied within a reasonable
period of time thereafter, then either Party way cancel
this Contract (pursuant to ¶ 16.3) by Notice.
27 Escrow Terms
27.1 The Contract Deposit shall be deposited by
Escrowee in an escrow account as set forth in ¶ 1.24
and the proceeds held and disbursed in accordance with
the terms of this Contract. At Closing, the Contract
Deposit shall be paid by Escrowee to Seller. If the
Closing does not occur and either Party gives Notice to
Escrowee demanding payment of the Contract Deposit,
Escrowee shall give prompt Notice to the other Party of
such demand. If Escrowee does not receive a Notice of
objection to the proposed payment from such other
Party within 10 business days after the giving of
Escrowee's Notice, Escrowee is hereby authorized and
directed to make such payment to the demanding party.
If Escrowee does receive such a Notice of objection
within said period, or if for any reason Escrowee in
good faith elects not to make such payment, Escrowee
may continue to hold the Contract Deposit until
otherwise directed by a joint Notice by the Parties or a
final, non-appealable judgment, order or decree of a
court of competent jurisdiction. However, Escrowee
shall have the right at any time to deposit the Contract
Deposit and the interest thereon, if any, with the clerk
of a court in the county as set forth in ¶ 22 and shall
give Notice of such deposit to each Party. Upon
disposition of the Contract Deposit and interest
thereon, if any, in accordance with this ¶ 27, Escrowee
shall be released and discharged of all escrow
obligations and liabilities.
27.2 The Party whose Attorney is Escrowee shall be
liable for loss of the Contract Deposit. If the Escrowee
is Seller's attorney, then Purchaser shall be credited
with the amount of the contract Deposit at Closing.
27.3 Escrowee will serve without compensation.
Escrowee is acting solely as a stakeholder at the
Parties' request and for their convenience. Escrowee
shall not be liable to either Party for any act or
omission unless it involves bad faith, willful disregard
of this Contract or gross negligence. In the event of any
dispute. Seller and Purchaser shall jointly and severally
(with right of contribution) defend (by attorneys
selected by Escrowee), indemnify and hold harmless
Escrowee from and against any claim, judgment, loss,
liability, cost an d expenses incurred in connection with
the performance of Escrowee's acts or omissions not
involving bad faith, willful disregard of this Contract or
gross negligence. This indemnity includes, without
limitation, reasonable attorneys' fees either paid to
retain attorneys or representing the fair value of legal
services rendered by Escrowee to itself and
disbursements, court costs and litigatio n expenses.
27.4 Escrowee acknowledges receipt of the Contract
Deposit, by check subject to collection.
27.5 Escrowee agrees to the provisions of this ¶ 27.
27.6 If Escrowee is the Attorney for a Party, Escrowee
shall be permitted to represent such Party in any
dispute or la wsuit.
27.7 This ¶ 27 shall survive Closing, cancellation or
termination of this Contract
28 Margin Headings
The margin heading do no t cons titute part of the text o f
this Contract.
29 Miscellaneous
This Contract shall not be binding unless and until
Seller delivers a fully executed counterpart of this
Contract to Purchaser (or Purchaser's Attorney)
pursuant to ¶ 17.2 and 17.3. This Contract shall bind
and inure to the benefit of the Parties hereto and their
respective heirs, personal and legal representatives and
successors in interest.
30 Lead Paint
If applicable, the complete and fully executed
Disclosure of Information on Lead Based Paint and or
Lead-Based Paint Hazards is attached hereto and made
a part hereof.
In Witness Whereof, thePartiesheretohavedulyexecutedthisContract asofthedate first abovewritten.
ESCROW TERMS AGREEDTO:SELLER: PURCHASER:
__________________________________________________________________________________________
ESCROWEE
____________________________________________________________
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______________________________
______________________________
______________________________
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