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Assignment, Assumption And Option Agreement

Assignment and Assumption Agreement

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 This Assignment and Assumption Agreement involves

BOREAL WATER COLLECTION INC. | BB Development XXVIII LLC | BOREAL WATER COLLECTION, INC | CATSKILL SPRINGS LLC | Leisure Time Spring Water, Inc, Alpine Farms, Inc

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Title: ASSIGNMENT, ASSUMPTION AND OPTION AGREEMENT
Governing Law: New York     Date: 10/11/2016

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Exhibit 10.1

 

ASSIGNMENT, ASSUMPTION AND OPTION AGREEMENT

 

THIS ASSIGNMENT, ASSUMPTION AND OPTION AGREEMENT ("Agreement") dated the 7th day of October, 2016, by and between BOREAL WATER COLLECTION, INC., 4496 Route 42, P.O. Box 220, Kiamesha Lake, NY 12751 ("Boreal") and CATSKILL SPRINGS LLC, 880 Hillsborough Boulevard, Hillsborough, California 94010 ("Catskill").

 

WITNESSETH

 

WHEREAS, Boreal is the contract vendee of a Contract of Sale entered into by BB Development XXVIII LLC, as Seller, and Heather Tilton, as Purchaser, dated December 2, 2015 (the "Contract") for the purchase of real property (together with the artesian springs and associated existing facilities thereon), also known as Shandalee Road, Livingston Manor, New York, being more particularly described as Town of Callicoon Tax Map Parcel Nos. 4-1-11.1 and 14.1 (the "Property"), which Contract was assumed by Boreal in connection with the exercise of its right of first refusal as contained in an Agreement between Leisure Time Spring Water, Inc., Alpine Farms, Inc. and Andrew Krieger and Suri Levow Krieger dated November 1, 1995 and a copy of which is attached as Exhibit A (the "November 1, 1995 Agreement"), as the same has been amended from time to time, and

 

WHEREAS, Boreal desires to assign the Contract to Catskill, and

 

WHEREAS, Catskill desires to assume the Contract, and

 

WHEREAS, pursuant to the November 1, 1995 Agreement, Leisure Time Spring Water, Inc. obtained the rights to draw water from the artisan springs and utilized an existing spring water collection facility located on the Property, pursuant to the terms and provisions of such November 1, 1995 Agreement, and

 

WHEREAS, the terms and provisions of the November 1, 1995 Agreement between Leisure Time Spring Water, Inc. and Alpine Farms, Inc. were modified by Agreement of Modification dated April 25, 2000 and a copy of which is attached as Exhibit B (the "April 25, 2000 Modification Agreement"), and

 

WHEREAS, Boreal is the successor, assignee and official legal representative of Leisure Time Spring Water, Inc. and assumed the rights and obligations of Leisure Time Spring Water, Inc., pursuant to the November 1, 1995 Agreement and the April 25, 2000 Modification Agreement, and

 

WHEREAS, Boreal and BB Development XXVIII, LLC entered into an Agreement of Modification dated June 22, 2016 and a copy of which is attached as Exhibit C (the "June 22, 2016 Modification Agreement"), whereby the terms and revisions of the November 1, 1995 Agreement and the April 25, 2000 Modification Agreement were further modified, and

 

WHEREAS, Boreal and Catskill desire to have Catskill assume the rights and obligations of Andrew J. Krieger and Suri Levow Krieger as set forth in the November 1, 1995 Agreement, as amended by the April 25, 2000 Modification Agreement and the June 22, 2016 Modification Agreement, and Boreal and Catskill desire to have Boreal assume. the rights and obligations of Leisure Time as set forth in the November 1, 1995 Agreement and the April 25, 2000 Modification Agreement, as modified and restated as hereinafter provided, and

 

 

 

1

 

 

 

WHEREAS , the parties desire to acknowledge and restate the terms and provisions of the June 22, 2016 Modification Agreement and Catskill desires to assume the obligations of BB Development XXVIII, LLC contained therein;

 

NOW THEREFORE, in consideration of the premises and the terms and provisions of this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

 

1.       Boreal hereby assigns to Catskill all of Boreal's right, title and interest in and to the Contract, in consideration of the payment by Catskill to Boreal of the sum of One Hundred Fifty Thousand Dollars ($150,000.00) in good and collectible funds, which shall be paid by Catskill to Boreal simultaneously with the closing on the Contract.

 

2.       The November 1, 1995 Agreement is hereby modified as follows: Boreal shall have an option to repurchase the Property which is the subject matter of the Contract, together with artesian springs, facilities and appurtenances, from Catskill for a period of one (1) year from the date of this Agreement, for the sum of Seven Hundred Fifty Thousand Dollars ($750,000.00), plus reimbursement of all closing and other transaction costs of Catskill with respect to its purchase of the Property pursuant to the Contract and in connection with the repurchase by Boreal, provided that:

 

(a)       Any late payment or non-payment by Boreal in connection with its payments for water pursuant to the November 1, 1995 Agreement, as modified by the April 25, 2000 Modification Agreement and the June 22, 2016 Modification Agreement, shall result in a waiver by Boreal of its option to repurchase. Notwithstanding the foregoing, Boreal shall have a grace period of ten (10) days to pay any sums due and owing and, if not paid within such ten (10) day period, Catskill shall provide a default Notice, upon which Boreal will have five (5) business days after receipt of such Notice to pay the sums due and owing;

 

(b)       In the event that Boreal exercises its option to repurchase and then sells, exchanges or otherwise transfers the Property within two (2) years after closing on the repurchase for a sum in excess of Seven Hundred Fifty Thousand Dollars ($750,000.00) (in cash or other consideration), Boreal shall pay to Catskill upon the closing of such sale an amount equal to twenty-five percent (25%) of the amount by which the sales price (in cash or other consideration) of such sale exceeds the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00); and

 

(c)       Other than as modified as set forth above, the parties hereby restate all the terms and provisions of the November 1, 1995 Agreement and the April 25, 2000 Modification Agreement (with Catskill assuming the rights and obligations of Andrew J. Krieger and Suri Levow Krieger as set forth therein and Boreal assuming the rights and obligations of Leisure Time as set forth therein) and the June 22, 2016 Modification Agreement (with Catskill assuming the obligations of BB Development XXVIII, LLC as set forth therein).

 

 

 

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A Memorandum of Contract shall he prepared, executed and acknowledged by the parties, and filed in the Sullivan County Clerk's Office with respect to such option pursuant to Real Property Law §294, subd. 2.

 

3.       In the event either party is required to or permitted to give notice to the other party pursuant to this Agreement ("Notice"), Notice shall be given to the other party at the other party's address as set forth at the beginning of this Agreement by (a) personal delivery to the other party, (b) certified mail, return receipt requested or (c) overnight mail or nationally recognized courier. In the event that Notice is given pursuant to (a), Notice shall be deemed to have been received upon delivery. In the event that Notice is given pursuant to (b), Notice shall be deemed to have been received five (5) days after mailing. In the event Notice is given pursuant to (c), Notice shall be deemed to have been received one (1) day after mailing. In the event Notice is given by Catskill, a copy of such Notice shall be simultaneously provided by Catskill to Billing Loughlin & Silver, LLP, 461 Broadway, I'. 0. Box 1447, Monticello, NY 12701, by certified mail, return receipt requested. In the event Notice if given by Boreal, a copy of such Notice shall be simultaneously provided by Boreal to Epstein, Englert, Staley & Coffey, 425 California Street, 17 (11 Floor, San Francisco, California 94104, by certified mail, return receipt requested. Either party may change the address to which Notice is to be given to it or to its attorneys (including the choice of its attorneys to whom Notice is to be given), by Notice to the other party at its address as set forth at the beginning of this Agreement.

 

4.       The parties agree to cooperate in good faith hereafter in taking all additional actions, including the preparation, execution and delivery of all additional documentation, as are reasonably necessary or desirable in connection with carrying out the purposes of this Agreement.

 

5.       This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All prior aueements, understandings, and representations of the parties with respect to the subject matter hereof are merged herein and are of no further force and effect except insofar as they are specifically and expressly set forth herein.

 

6.       This Agreement is binding upon the successors and/or assigns of the parties hereto.

 

7.       This Agreement may not be modified, amended, changed, altered, supplemented, waived, modified, terminated, rescinded and/or cancelled, in whole or in part, except by writing executed by the parties hereto.

 

8.       This Agreement is governed by and shall be construed solely in accordance with the internal laws of the State of New York applicable to agreements entered into and to be wholly performed solely within the State of New York, without regard to conflict of law principles.

 

9.       In the event of any dispute arising out of or referable to this Agreement, the dispute may only be commenced, maintained and prosecuted in the Supreme Court of the State of New York, County of Sullivan, or the United States District Court for the Southern District of New York, White Plains division, in which action both parties voluntarily waive their respective rights to request and/or receive a trial by jury. Both parties hereby waive any claim of an inconvenient forum.

 

 

 

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10. This Agreement may be executed in counterparts, and the counterparts, taken and construed together, shall be deemed and construed as a single unified instrument, enforceable as such. This Agreement may be executed by faxed, photocopied, electronic or e-mailed signatures, which shall be deemed and construed as original signatures and enforceable against the parties and binding as such.

 

IN WITNESS WHEREOF, the parties have set their hands the date and year first above written to this Agreement.

 

 

 

BOREAL WATER COLLECTION, INC.

 

 

 

By: /s/ Francine Lavoie

 

Francine LaVoie, CEO

 

 

 

 

 

CATSKILL SPRINGS LLC

 

 

 

By: /s/ Marvin Newberg

 

Marvin Newberg, Authorized Signatory, Assignee

 

 

STATE OF NEW YORK

}

 

}SS.:

COUNTY OF SULLIVAN

}

 

On the 7th day of October in the year 2016 before me, the undersigned, a notary public in and for said state, personally appeared Francine LaVoie, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

 

/s/ Mauranne Laforge

 

Notary Public

 

 

STATE OF NEW YORK

}

 

}SS.:

COUNTY OF SULLIVAN

}

 

On the 7th day of October in the year 2016 before me, the undersigned, a notary public in and for said state, personally appeared Marvin Newberg, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

 

/s/ Steven N. Mogel

 

Notary Public

 

Notary Public, State of New York

NYS Reg No. 02M06070208

Qualified in Sullivan County

Commission Expires Feb. 25, 2018

 

 

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EXHIBIT A

 

November 1, 1995 Agreement

 

See Attached.

 

 

 

 

 

 

 

 

 

5

 

 

 

 

AGREEMENT, made this 1 st day of November 1995. by and between LEISURE TIME SPRING WATER. INC. (Leisure Time), a New York Corporation, whose address is Box K. Kiamesha Lake. New York 12751, and ALPINE FARMS, INC. (Alpine). a New York Corporation, whose address is c/c KBCA, I Bridge Plaza, Suite 690, F011 Lee, New Jersey 07024, and ANDREW J. KRIEGER and SIMI LEVOW KRIEGER (Owner), residing at 311 Hardenburgh Avenue, Demarest. New Jersey 67626.

 

WITNESSETH:

 

WHEREAS, Andrew J Krieger and Suri Levow Krieger (Krieger) are the owners of certain tracts or parcels of land lying, being and situate in the Towns of Callicoon and Rockland County of Sullivan, State of New York, and more particularly described in deeds dated May 18,1988 and recorded in the office of the Clerk of the County of Sullivan on May 23, 1988 in Libel;1345 of Deeds at pages 61 and 65, and

 

WHEREAS, by agreement dated January 31. 1991, and recorded in the office of the clerk of the County of Sullivan on June 3. 1991, in Liber 1525 of Land Records at page 45, by and between Krieger and Alpine, Krieger did giant. assign, convey, transfer and deliver to Alpine the right and privilege to capture and possess water flowing from all of the springs located on the aforesaid real property, a copy of which agreement is annexed hereto and marked Schedule "A -and is incorporated herein as if more fully set forth at length herein, and

 

WHEREAS, there is located on said real property artesian springs and an existing spring water collection facility, including, but not limited to two (2) storage tanks, a pump building, piping, and other related equipment necessary for and related to the harvesting of water from the said artesian springs, and

 

WHEREAS, Leisure Time and Alpine are desirous of entering into an agreement under the terms of which Leisure Time shall obtain the rights to use the said artesian springs, water supply and the existing facility as hereinabove described and for which Alpine shall be compensated therefore as hereinafter set forth,

 

 

1

 

 

 

 

NOW, THEREFORE, in consideration of the mutual covenants, promises and representations herein made, the parties do agree as follows:

 

1. EXCLUSIVITY: Pursuant to the terms of the agreement between Alpine and Krieger aforesaid, Alpine does hereby grant to, Leisure Time the sole and exclusive right to draw water and use the artesian springs, water supply and existing facility as hereinabove described for the term of this agreement together with the rights of Alpine under paragraph 1(i) and 1(ii) thereof. Alpine shall have the right of access to the pump station building and the "gas boy" located therein. Notwithstanding the right of access to the "gas boy", Owner and Alpine represent and agree that they shall not under any circumstances alter or change the access codes thereof. Leisure Time shall have the right to draw water at any time subject only to any limitations which may be imposed against Leisure Time or are imposed against the Owner and/or Alpine under its permits by any governmental authority having jurisdiction thereof. Notwithstanding the foregoing, Alpine shall have the right to sell water from the springs upon the following conditions:

 

a) Leisure Time shall have the right to veto any proposed sale

b) Leisure Time must consent to such sale.

c) Such sale shall not interfere with Leisure Time's ability to draw water at any time.

d) Such sale shall not interfere with Leisure Time's ability to meet its gallonage requirements as set forth in Schedule "B".

e) Leisure Time shall bill and collect from the purchaser the amount charged upon the sale of said water.

t) The price to he charged per gallon shall not be less than the amount paid by Leisure Time to Alpine as set forth herein.

g) The proceeds of the water sales by Alpine to third parties shall be divided equally between Leisure Time and Alpine.

h) In the event of non-collection of the purchase price from the third party, both Leisure Time and Alpine and/or Owner shall bear the loss equally without any liability to the other.

 

 

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i)Notice of any sale by Alpine and the consent thereto by Leisure Time shall be in writing.

 

2.        MINIMUM GUARANTEE: Leisure Time does hereby guarantee to Owner that it shall draw not less than ten million (10,000,000) gallons per year. In the event that drought or other conditions reduce the capacity of the existing springs to meet the minimum guarantee, such minimum guarantee shall be reduced in accordance with Schedule "B" annexed hereto, e.g., if in any given month the production of the springs cannot meet the demand of Leisure Time as set forth in Schedule "B" (i.e.. July 12% or 1.200,000 gallons), the minimum guarantee shall be reduced by the difference in demand and production. By way of example, if in the month of July production was Six Hundred Thousand (600.000) gallons and demand is One Million Two Hundred Thousand (1,200,000) gallons, the minimum guarantee would be reduced by six hundred thousand (600,000) gallons. Anything herein to the contrary notwithstanding, the minimum guarantee of Leisure Time in the first year of the term of this agreement shall be Seven Million Five. Hundred Thousand (7,500,000) gallons and the obligation of Alpine to provide the minimum gallonage as set forth in Schedule "B" shall be reduced proportionately.

 

3.        TERM: The term of this agreement shall be forty (40) years to commence on November 1, 1995. A term year shall commence on November 1 and end on October 31.

 

4.        COMPENSATION! During the first twenty-five (25) years of this agreement, Leisure Time shall pay to Alpine the sum of one cent (1 Cent) per gallon for the first five million (5,000,000) gallons of water drawn and three-fourths of one cent (3/4 cent) for all gallonage thereafter, but no less than Eighty-Seven Thousand Five Hundred ($87,500.00) Dollars per year regardless of the actual gallonage drawn, except during the first year of this agreement the minimum payment shall be Sixty-Eight Thousand Seven Hundred Fifty


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