The Consulting Agreement states "4. If within the 2-Year Period, Watchtower (a) determines that it will proceed with the development or (2)
It does not say, "(a) determines that it will proceed with the development by notifying Loterdan". The trigger is "determines that it will proceed with development" The timing of the payment (i.e. the due date) is based on when it tells Loterdan. One could say that this is an ambiguos term, or that the normal interpretation is that once the WTS determined to proceed with development, it had X number of days to pay.
The “ Repurchase Agreement ” covers the second $9,500,000 payment. It states in Section 2.9:
“Watchtower covenants and agrees that if, within the 2-Year Period the Town of Ramapo rezones the Property pursuant to an application filed by Watchtower in furtherance of the Development, then Watchtower shall forthwith pay Lorterdan the Compensation as defined in the Consulting Agreement. This provision shall not prohibit Watchtower from filing and prosecuting applications for any approval required for the Development."
The Watchtower seems to be begging the judge to not look at these tax applications and community agreements that are court ordered and under oath. (The parole evidence rule applies more to pre-contact negotiations to determine what the parties meant at the contract formation, if the contract is incomplete or ambiguous. It's not for post-conract actions....generally) Most importanty, do the bolded words (Watchtower's argument) give the Watchtower the right to lie under oath by filing for property tax exemptions and for this community benefit agreement (i.e. Watchtower telling under oath to these authorities that it was going to immenently develop the property?) I say no. Therefore, when the WTS filed its tax exemption applications and community association agreement (before a judge, no less), of course it was allowed to do so. But, the Repurchase Agreement didn't allow the WTS to lie! That would be a silly reading. Plus, it would be illegal to write a contract term that allowed one to lie in court or at the tax appraiser's office (wink, wink). That would be void contract/term due to illegality. When the WTS filled out its tax applications and community development, it "determined that it would proceed with development."
I think we should get this in front of Judge Judy. Judge Skeeter thinks Loterdan has a better case.
Skeeter
