AMENDMENT NO. ONE TO
AGREEMENT
Dated as of the 16th day of June, 1997
WHEREAS, Mid-Island Limited Partnership ("Seller") and Home
Properties of New York, L.P. ("Purchaser") have entered into an
Agreement, dated April 10,1997 (the "Agreement") relating to the
purchase and sale of the Mid-Island Apartments located in the
city of Bayshore, County of Suffolk, State of New York;
WHEREAS, by letter dated May 7,1997 Purchaser exercised its right
to terminate the Agreement;
WHEREAS, Purchaser and Seller desire to re-institute the
Agreement and to amend certain of its terms:
NOW THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not defined
shall have the meaning given to them in the Agreement.
2. PURCHASE PRICE. Sub-paragraph B of Paragraph First of the
Agreement shall be revised to provide that the Purchase Price
shall be Ten Million Six Hundred Fifty Thousand Dollars
($10,650,000) payable as follows:
a. $3,975,000 on the Closing Date by wire transfer; and
b. Subject to the provisions of Paragraph Ninth of the
Agreement. $6,675,000 on the Closing Date by Purchaser's
assumption of the Note and Mortgage.
3. Buyer further agrees to execute any and all documents (subject
to the reasonable approval of Buyer's counsel) as are reasonably
necessary in connection therewith, provided that the close of
this transaction for the conveyance of Seller's property shall
not be contingent upon or subject to the completion of such
exchange. Buyer understands and acknowledges that the seller is
participating in the First American Tax Deferred Exchange
Program. Seller agrees to indemnify and hold Buyer free and
harmless from any cost, expense or liability, including
attorney's fees resulting from Buyer's participation in such
exchange.
4. CLOSING DATE. Paragraph Second of the Agreement shall be
amended to provide that the Closing shall occur by mail and wire
transfer on or before June 30,1997(the "Closing Date") with
time being of the essence.
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5. DUE DILIGENCE PERIOD. Purchaser and Seller agree that the Due
Diligence Period is over and that Purchaser hereby waives its
right to terminate the Agreement as provided in Paragraph Tenth
and Eleventh. Seller will provide the signed representation
letter as described in sub-paragraph (e) of Paragraph Eleventh.
In addition, Seller agrees that prior to the Closing Date, final
inspections will be successfully completed with respect to the
open permits listed on the attached Building Division
Certificate.
6. TITLE. Purchaser hereby acknowledges that it has no Objection
to Title as described in Paragraph Fifteenth of the Agreement,
provided that Purchaser retains the right to object to any
exceptions raised by the Title Company in a continuation at or
prior to Closing.
7. ESCROW AGREEMENT. The provisions of Paragraph Twenty-First of
the Agreement no longer apply as there is no Deposit and shall be
removed in their entirety.
8. BOARD APPROVAL. The Purchaser represents that it has obtained
the consent of the Board of Directors of Home Properties of New
York, Inc. to the Agreement as amended hereby.
9. REINSTATEMENT. As amended hereby, the Agreement is re-instated and shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
MID-ISLAND LIMITED PARTNERSHIP
By: /s/ Xxx Xxxxxx
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Title: Vice President
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Name: Xxx Xxxxxx
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HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc., General Partner
/s/ Xxx X. XxXxxxxxx
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Title: Vice President
------------------------------
Name: Xxx X. XxXxxxxxx
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AGREEMENT
THIS AGREEMENT made this 10th day of April, I997, by and between
MidIsland Limited Partnership, a New York limited partnership,
having a place of business at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter referred to as "Seller"), and Home Properties
of New York, L.P. (hereinafter referred to as "Purchaser").
FIRST: A. Subject to the terms and conditions of this
Agreement, Seller shall sell to Purchaser, and Purchaser shall
purchase from Seller, all of Seller's right, title and interest
in and to the following (collectively, the "Property"):
( 1 ) that certain land located in the City of Bayshore,
County of Suffolk, State of New York, located at 000 Xxxx Xxxxxx
and 0000 Xxxxx Xxxxxxxxx, as more particularly described in
Exhibit A annexed hereto and incorporated herein by this
reference (the "Land"), together with all right, title and
interest of Seller in and to (I) the land lying in the bed of any
street, highway, road or avenue, opened or proposed, in front of
or adjoining the Land, to the center line thereof, (ii) any
rights of way, appendages, appurtenances, sidewalks, alleys,
gores or strips of land adjoining or appurtenant to the Land and
used in connection therewith and (iii) any award made or to be
made in lieu of any of the foregoing and any award for damage to
the Land or the Improvements (as defined below) by reason of
change of grade of any street, road or avenue;
(2) all improvements, structures and fixtures located upon
the Land (the "Improvements");
(3) all tangible personal property (the "Personal Property")
located on and used in
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connection with all or any portion of the Land and Improvements
(except for a refrigerator, typewriter and Xerox machine in the
office);
(4) the interest of the landlord in, to and under all leases
of space of all or any portion of the Land and Improvements; and
(5) all contracts, agreements, permits, licenses and
warranties held solely for use in connection with all or any
portion of the Land, Improvements or Personal Property (the
"Intangible Property")
B. The purchase price for the Property (the "Purchase
Price") shall be Eleven Million ($ 11,000,000) Dollars, payable
as follows:
a. $500,000.00 (the "Deposit") upon the signing of this
Agreement, receipt of which, by check made payable to the order
of Xxxxx Xxxxxx, Esq., as escrowee, is hereby acknowledged,
subject to collection, nonpayment of which check in due course
will give Seller the option of canceling this Agreement, which
Deposit shall be held and disbursed pursuant to the provisions of
this Agreement. Interest earned on the Deposit shall belong to
the party entitled to receive the Deposit proceeds.
b. $3,825,000 on the Closing Date by (I) an unendorsed
teller's check or certified check of Purchaser, drawn on a bank
which is a member of the New York Clearing House Association
directly to the order of Seller or (ii) at Seller's election, by
wire transfer of immediately available funds through the Federal
Reserve System.
c. Subject to the provisions of Paragraph NINTH hereinbelow,
$6,675,000.000 on the Closing Date by Purchaser's assumption of
the note and mortgage (the "Note and Mortgage")
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presently held by the Jamaica Savings Bank ("JSB") in the
principal sum of $6,675,000.00, encumbering the Property. A copy
of said Note and Mortgage has previously been delivered to
Purchaser, and is annexed hereto as Exhibit B.
SECOND: The Closing shall occur at the office of Xxxxx
Xxxxxx, Esq., Xxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
a lending institution, at 10:00 a.m. within fifteen (15) days
after the conclusion of the Due Diligence period (the "Closing
Date"). Purchaser shall be entitled to one adjournment of the
Closing Date to a date not later than June 20,1997 (the
"Adjourned Closing Date"), if Purchaser notifies Seller of the
Adjourned Closing Date, in writing, prior to May 5, 1997. TIME
SHALL BE OF THE ESSENCE AS TO PURCHASER'S OBLIGATION TO CLOSE ON
JUNE 20, 1997.
THIRD: The Premises are hereby sold and are to be conveyed
subject only to the following (the "Permitted Encumbrances"):
a. (I) Any state of facts an updated survey may show
provided same do not render title unmarketable or prohibit the
existing structures or the use of the Premises as currently used.
(ii) Any state off acts a personal inspection of the
Premises would show and/or reveal, provided title is not thereby
rendered unmarketable.
b. (I) All leases, subleases, tenancies, and rights of
occupancy thereunder or otherwise and any renewals,
modifications or replacements thereof (collectively, the
"Leases"), as the same may be affected by rent regulations or
laws now or hereafter in effect, and rulings, decisions or
interpretations by any court, agency or administrative body.
(ii) Any new leases entered into by Seller and subleases,
tenancies and rights of
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occupancy thereunder and any renewals, modifications or
replacements thereof as may be made by Seller in accordance with
the terms hereof, subject to the provisions of Paragraph SEVENTH
hereof.
c. Rights of any utility company to erect, maintain and
operate lines, wires, poles, cables and distribution boxes, in,
over and upon the Premises.
d. Possible projections and/or encroachments of retaining
walls, stoops, areas, steps, xxxxx, trim, cornices, standpipes,
fire escapes, coal chutes, casings, ledges, water tables,
lintels, porticos, keystones, bay windows, xxxxxx, copings,
cellar doors, sidewalk elevators, fences, fire escapes and the
like, or similar projections or objects on, under or above any
adjoining streets or the premises, or within any set-back areas,
and variations between the lines or record title and fences,
retaining walls, hedges, and the like.
e. Maintenance, rental agreements, employment agreements and
service contracts, if any, charges for which shall be apportioned
on the Closing Date (the "Maintenance Contracts").
f. The mortgage hereinbefore referred to in Paragraph First,
subject further to the provisions of Paragraph NINTH.
g. Radio antenna and television antenna violations or
violations arising out of tenant air conditioner(s).
h. Building and zoning restrictions, ordinances, and
regulations affecting the Premises adopted by the city, town or
village in which the Premises lie or by any other governmental
authority having jurisdiction thereof, and all amendments or
additions thereto now or which will be in force and effect on the
Closing Date.
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i. Rights contained in instruments of record, if any, so
far as the same may be of present force or effect, in favor of
any public or quasi-public utility and not violated by existing
structures.
j. Violations of laws, regulations, ordinances, orders or
requirements, if any, noted in or issued prior to or subsequent
to the date hereof by any governmental or municipal department or
authority having jurisdiction over the Premises and any
conditions constituting such violations, although not so noted or
issued.
k. Any and all assessments becoming liens subsequent to the
date hereof, provided however that Seller will be responsible for
any prior period for which the assessment applies.
l. Unpaid real estate taxes, water and sewer charges, which
shall be apportioned on the Closing Date.
FOURTH: Except as otherwise herein expressly provided, the
"customs in respect to title closings" adopted by the Real Estate
Board of New York, Inc., shall apply to the apportionments and
other matters herein mentioned.
The following are to be apportioned on the Closing Date:
a. Prepaid Rents and Additional Rents as and when collected,
and any payments or subsidies of such rents under the County of
Suffolk's Section 8 Program;
b. Water meter charges and sewer rents, if any; unfixed
water meter charges, if any, shall be apportioned on the basis of
the last meter reading, provided, however, that if the Premises
are sold subject to any lease or leases under which the tenant or
tenants are obligated to pay water charges, such water charges
shall not be apportioned, and Purchaser shall look solely to the
said tenants for the payment of same, and Purchaser shall take
title subject to any such unpaid water meter charges
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owing by subject tenant or tenants, and same shall not be deemed
an objection to title;
c. Taxes on the basis of the fiscal year. If the closing
shall occur before a new tax rate is fixed, the apportionment of
taxes at the Closing shall be upon the basis of the old tax rate
for the preceding period applied to latest assessed valuation.
Promptly after the new tax rate is fixed, the apportionment of
taxes shall be recomputed. Any discrepancy resulting from such
recomputation and any errors or omissions in computing
apportionments at Closing shall be promptly corrected, which
obligations shall survive the Closing;
d. Security Deposits (I) made with LILCO for gas and
electric service to the Premises and (ii) made with the Suffolk
County Water Authority for water service to the Premises, in the
event such Deposits are not refundable to the Seller. Purchaser
shall pay same to Seller and Seller shall assign said Deposits to
Purchaser. It is not intended that said Deposits be apportioned.
e. Wages and payroll expenses, including, but not limited
to, social security, unemployment compensation, taxes, employee
disability insurance, and workmen's compensation insurance.
Adjustments shall be made to Purchaser for such expense
obligations assumed by Purchaser, including, but not limited to,
any vacations with pay and any other benefits due to employees
that may be accrued to those employees as listed on Schedule 1
annexed hereto and/or any replacements or new employees for those
employees listed on such Schedule, the same, if any, to be
assumed by Purchaser;
f. Charges, if any, arising out of service and maintenance
agreements and any replacements and/or renewals thereof;
g. Revenues, if any, arising out of waste collection
privileges, telephone booths, vending
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machines, and submetering agreements;
h. Charges for gas, steam and electricity;
I. Vault tax or charges, if any;
l. Interest on tenant securities to the extent permitted
under applicable law;
j. Any and all other items commonly adjusted between sellers
and purchasers of real property.
FIFTH: If any tenant is in arrears in the payment of rent on
the Closing Date, rents received from such tenant after the
Closing shall be applied in the following order or priority: a)
first to the month in which the Closing occurred; b) then to any
month or months following the month in which the Closing
occurred; c) then to the month preceding the month in which the
Closing occurred; and (d) then to the period prior to the month
preceding the month in which the Closing occurred. If rents or
any portion thereof received by Seller or Purchaser after the
Closing are payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of
any reasonable attorneys' fees, costs and expenses of collection
thereof, shall be promptly paid to the other party, which
obligations shall survive the Closing. If any tenants are
required to pay percentage rent, escalation charges for real
estate taxes, operating expenses, cost-of living adjustments,
major capital improvement increases or other charges of a
similar nature ("Additional Rents") and any Additional Rents
are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the
Closing, then Purchaser shall promptly pay to Seller Seller's
proportionate share thereof, less a proportionate share of any
reasonable attorneys' fees, costs and expenses of collection
thereof, if and when the tenant paying the same has made all
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payments of rent and Additional Rent then due to Purchaser
pursuant to the tenant's Lease, which obligation shall survive
the Closing.
In the event any such arrears attributable to a period prior
to Closing exists 120 days after the Closing, then Purchasers, at
Seller's option, shall assign such arrearage amounts to Seller
who may xxx or otherwise proceed to collect same.
SIXTH: To the extent that any of the tenants in the
buildings on the Premises have deposited rent securities pursuant
to the terms of their respective leases, said security deposits
(where not prohibited by the terms of a lease) will be delivered
to Purchaser at Closing against a receipt and indemnity agreement
in the form annexed hereto as Exhibit ""C". Seller will not apply
security deposits between the date hereof and the Closing Date
unless a tenant has been evicted from the Premises. (Rent and
Security Schedules annexed as Exhibit ""D").
SEVENTH: Seller may enter into new leases, or renewals or
modifications of existing leases, for the premises, or any
portions thereof, (a) without first obtaining Purchaser's consent
thereto, provided same is required by law or, (b) if not required
by law, provided any such new lease, renewal or modification
provides for annual rental payments not less than the average
market rent for comparable apartments at the Property, and the
tenant is of the same general character and financial stability
as other tenants to whom Seller has rented to in the past.
EIGHTH: Purchaser represents that if it elects to proceed
with the transaction after the investigation described in the
TENTH and ELEVENTH paragraphs, it will have inspected the
Premises, the buildings constituting part of the Premises, the
uses thereof and the fixtures, equipment and personal property
included in the sale, if any, to its satisfaction, that it
will have independently
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investigated, analyzed and appraised the value and profitability
thereof; that it will have reviewed all documents which are
referred to herein with respect to the Premises and any other
documents Purchaser desired; that it is thoroughly acquainted
with all of the foregoing and that it will take title to the
premises "AS IS" and in its present condition, subject to
reasonable use, wear, tear and natural deterioration between the
date hereof and the Closing Date; provided, however, that Seller
will use its reasonable efforts to continue to maintain the
Premises in the same general condition as it has been maintained
between the date hereof and the Closing Date. Purchaser expressly
acknowledges that, except as expressly provided herein, Seller
(or any of its agents or representatives) has not made and does
not make, and is unwilling to make, any representation or
warranties as to the physical condition, rents leases or tenants,
expenses, use or operation or any other matter or thing affecting
or related to the premises and Purchaser hereby expressly
acknowledges that no such representations have been made and
Seller has held out no inducements to Purchaser to execute this
Agreement. Without limiting the generality of the foregoing,
Purchaser has not relied on any representations or warranties, in
either case express or implied, except as expressly hereinafter
set forth, as to (a) the current or future real estate tax
liability, assessment or valuation of the Premises; (b) the
potential qualification of the Premises for any and all benefits
conferred by federal, state or municipal laws, whether for
subsidies, special real estate tax treatment, insurance,
financing, or any other benefits, whether similar or dissimilar
to those enumerated; (c)the compliance of the Premises, in its
current or any future state with applicable zoning ordinances and
the ability to obtain a variance in respect to the Premises and
possible noncompliance with said zoning ordinances; (d) the
availability of any financing for the purchase, alteration,
rehabilitation or operating of the Premises from any source,
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including, but not limited to, state, city or federal governments
or any institutional lenders; (e) the current or future use of
the Premises; (f) the present operating state of any and all
machinery or equipment on the Premises, subject to reasonable
wear and tear, or their suitability or rehabilitation or
renovation; (g) the presence or absence of any rules or notices
of violations of law issued by any governmental authority subject
to the provisions hereof; (h) the layout, area, square feet
dimensions in any schedule of lease, leases, rents, income,
expenses or operation of the Premises; and (I) the presence or
absence of any asbestos or any other hazardous substances on,
under or about the Premises.
NINTH: As described in Paragraph NINTH hereof, the Premises
are presently encumbered by a first mortgage to the favor of JSB
in the principal amount of $6,675,000.00. A copy of said Mortgage
and the Mortgage Note have previously been delivered to
Purchasers. Seller acknowledges that Purchaser intends to apply
to JSB for consent to the assumption by Purchaser of the Note and
Mortgage, and Seller and Purchaser agree that Purchaser's
obligations under this Agreement are expressly conditioned upon
the granting by JSB of its consent to such assumption of the Note
and Mortgage by Purchaser. Seller agrees to cooperate with
Purchaser and Seller shall use all commercially reasonable
efforts to cause JSB to consent to the transfer of the Property
to Purchaser, and to permit the assumption of the Note and
Mortgage by Purchaser. Purchaser shall promptly apply to JSB for
consent to assumption by the Purchaser of the Note and Mortgage,
and shall comply with all of the reasonable terms and conditions
of JSB with respect thereto and shall pay the reasonable fees
and disbursements of JSB's attorneys in connection therewith;
provided further, that Purchaser shall be responsible for the
payment of the l% assumption fee set forth in the Note and
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Mortgage, or, alternatively, for obtaining JSB's waiver of its
right to impose and collect the 1%% assumption fee.
TENTH: a) Purchaser shall have the right for a period of
thirty days (30) from the execution of this Contract by the
parties (the "Due Diligence Period"), to conduct, or cause to be
conducted, an Environmental Inspection of the Property by an
inspector selected by Purchaser. The cost and expense of such
Environmental Inspection shall be paid solely by Purchaser.
b) Seller agrees to cooperate fully with Purchaser with
respect to the Environmental Inspection. In the event the results
of the Environmental Inspection disclose any deficiency in the
compliance of the Property with any applicable Environmental law
or disclose the presence of any Hazardous Substance, Purchaser
may either (I) waive such deficiency and consummate the
transactions contemplated by this Agreement, or (ii) terminate
this Agreement.
ELEVENTH: a) During the Due Diligence period described in
paragraph TENTH hereinabove, Purchaser shall have reasonable
access to the Properly, either personally or by authorized agent,
to inspect the Property, and the Personal Property (including,
but not limited to performing engineering and Phase I
environmental studies), the Seller's books and records
pertaining to the Property and the Personal Property, matters
relating to zoning compliance and compliance by the Property and
the Personal Property with other applicable governmental
regulations, the market in which the property is located,
Maintenance Contracts, the tax assessment on the Property as it
relates to the purchase price and to the assessment on comparable
properties and such other matters as Purchaser shall deem
reasonably necessary or appropriate in connection with the
Property and the Personal Property.
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b) Purchaser shall be allowed access to the entire Property,
including, at Purchaser's option, an opportunity to inspect
apartment units, all mechanical equipment, systems and fixtures
forming a part thereof subject, however, to Seller's reasonable
notice and timing constraints. Furthermore, as a part of
Purchaser's inspections, Purchaser shall be entitled to
cause such engineering and Environmental Inspections to be
conducted at the property as Purchaser may reasonably desire,
including, without limitation, inspections or studies which may
require the drilling of holes in the parking lot or non-
structural components of the Improvements, the removal of small
soil, carpet or similar samples, and the conducting of air tests
as Purchaser may require. In conducting any such entry,
investigation, test, or inspection, such inspections may be
conducted at all reasonable times; however, no party permitted
entry hereunder will unreasonable interfere with the operation of
the Property or the peaceable possession by individual tenants of
their respective apartment units.
c) Purchaser agrees to fully and completely repair and
restore the Property in the event of any damage whatsoever
arising out of the acts or omissions of Purchaser, Purchaser's
agents or consultants in connection with the inspections
conducted during such period. Purchaser hereby indemnifies and
holds Seller harmless from and against any loss, damage, injury,
claim or cause of action Seller may suffer or incur and arising
out of Purchaser's inspections of the Property undertaken
pursuant to this Agreement.
d) In the event Purchaser disapproves of any matter reviewed
or discovered during the Due Diligence Period, Purchaser shall
have the right to terminate this Agreement by the delivery of
written notice of termination on or before the expiration of such
period.
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e) Seller will provide a signed representation letter as
prescribed by Generally Accepted Auditing Standards as
promulgated by the Auditing Standards Division of the American
Institute of Public Accountants which representation is required
to enable an Independent Public Accountant to render an opinion
on such financial statements. Seller will provide access by
Purchaser's representatives, to all financial and other
information relating to the Property as Seller possesses.
f) If Purchaser terminates this Agreement in accordance with
this paragraph, Purchaser shall receive a full refund of the
Deposit, including any interest or other earnings thereon, and
thereafter Seller and Purchaser shall have no further obligations
or liabilities hereunder, one to the other. In the event the
Agreement is not terminated in accordance with the foregoing
provision, the Deposit shall become non-refundable upon the
expiration of such Period.
TWELFTH: Seller shall not be liable or bound for any verbal
or written statements, representation, real estate brokers'
"setups" or information pertaining to the Premises furnished by
any real estate broker, agent, employee, servant, or any other
person, unless the same are specifically set forth herein. All
oral or written prior statements, representations, or promises,
if any, and all prior negotiations and agreements are superseded
by this Agreement and merged herein.
THIRTEENTH: Seller and Purchaser hereby represents and
warrant that it has dealt with no broker in connection with this
Contract or the transaction hereunder, except for Xxxxxxx X.
Xxxxxx of Xxxxxxx X. Xxxxxxxxx Commercial Corp., who shall be
compensated by Seller as per separate agreement. Sellers and
Purchasers hereby agree they shall, jointly and severally,
indemnify and hold the other and/or their affiliates harmless
from and against any damages, judgments, claims, costs and
expenses (including reasonable attorneys fees) which may be
incurred by the indemnified party
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and/or its affiliates by reason of the claims of any broker who
asserts that he is due, all or part, of a commissions for this
transaction claiming that he (or any persons or entities
affiliated with, or claiming through such person) dealt with the
indemnifying party. This paragraph shall survive the Closing
Date.
FOURTEENTH: In the event of default by Purchaser in the
performance of any of the material terms and/or provisions of
this Agreement, the Deposit, together with interest earned
thereon, if any, shall be retained by Seller as liquidated
damages and not as a penalty (it being agreed that actual damages
in such event are difficult if not impossible to ascertain) and
upon such retention this Agreement shall be deemed null, void and
of no further force or effect and neither party hereto shall have
any further rights and/or liabilities each with respect to the
other arising from or out of this Agreement.
FIFTEENTH Purchaser agrees, at is expense, to order promptly
a commitment (the "Title Commitment") for fee title insurance to
the Premises. The Title Commitment shall (a) be in the amount of
the Purchase Price and (b) be a commitment to issue a policy (the
"Title Policy") of fee title insurance with respect to the
Premises, insuring title to the Premises subject only to: (I) the
Permitted Encumbrances and (ii) the standard printed exclusions
contained in the Title Commitment and the Title Policy. Purchaser
shall give Seller written notice as to any matters contained in
the Title Commitment which are not in accordance with this
Agreement and to which Purchaser has elected not to take title
subject to. Delivery of a copy of the Title Commitment shall be
deemed such written notice, so long as same is delivered to
Seller's counsel not less than fifteen (15) days prior to the
Closing Date, except for any exceptions not set forth by the
Title Company in the Title
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commitment, but subsequently raised by the Title Company prior to
Closing in a continuation. If it shall appear that any such
objections (the "Objections") to title may be removable according
to reasonable expectation within ninety (90) days after the date
set forth in paragraph SECOND hereof as the Closing Date, Seller
shall have the option(s) to extend the Closing Date for up to
ninety (90) days, with Purchaser's obligations hereunder to
remain in full force and effect during such extension(s). If the
Objections are not removed within such ninety (90) day period,
then either party shall have the right to terminate this
Contract. Nothing herein contained shall require Seller to bring
any action or proceeding, or to incur any expense or make any
payment in order to eliminate such Objections.
SIXTEENTH: (a) In the event the Closing fails to occur
solely by reason of Seller's inability to perform hereunder,
excepting Seller's willful default, then this Agreement shall
terminate (except as herein expressly provided), the Deposit,
together with interest, if any, earned thereon, shall be refunded
to Purchaser and both parties shall be relieved of any further
rights or obligations hereunder. Notwithstanding anything to the
contrary, Seller shall not be required to expend any money in
order to eliminate title defects or otherwise perform hereunder,
except as specifically set forth in Paragraph TWENTY-THIRD
hereof. If Seller willfully defaults hereunder, Purchaser shall
be entitled to any and all remedies at all or in equity
including, but not limited to, specific performance of this
Contract.
(b) Notwithstanding the foregoing, Purchaser may accept such
title as Seller may be able to convey, without reduction of the
Purchase Price or any credit or allowance against the same and
without any other liability on the part of Seller. The acceptance
of Seller's Deed by Purchaser shall
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be deemed to be full performance and discharge of every agreement
and obligation on the part of Seller to be performed pursuant to
the provisions of this Agreement except those, if any, which are
herein specifically stated to survive the Closing Date.
SEVENTEENTH: Seller makes no representations and assumes no
responsibility with respect to the continued occupancy of the
Premises or any part thereof by any tenant. The removal of
tenants whether by summary proceedings or otherwise prior to the
Closing Date shall not give rise to any claim on the part of
Purchaser. Further, Purchaser agrees that it shall not be an
objection to title that any tenants now or hereafter in
possession of parts of the Premises may be holdover tenants or in
default under their leases on the Closing Date.
EIGHTEENTH: The parties hereto agree that no part of the
purchase price paid hereunder has been paid by Purchaser for any
personal property. However, if any federal, state or local
governmental body deems any part of the purchase price to have
paid for any personal property, Purchaser agrees to pay to Seller
on the Closing Date or subsequent thereto the amount of any sales
tax payable in connection herewith. The provisions of this
Paragraph shall survive the Closing Date.
NINETEENTH: Seller represents that it has filed a proceeding
for the reduction of real estate taxes with respect to the Premises,
which proceeding is currently pending. Seller shall inform Purchaser
as to the particulars of such proceeding and Purchaser, at its
option, may continue the prosecution of the claim for reduction of
real estate taxes. In the event Purchaser elects to do so and tax
savings are effectuated, then Seller shall receive such savings
as are referable to the period prior to the Closing.
TWENTIETH: a) Any notice or demand which, under the
provisions of this Agreement
Page 16
or otherwise, must or may be given or made by any party hereto,
shall be in writing and shall be given or made by (x) mailing the
same by postage prepaid certified mail, return receipt requested,
or (y) sending same by any express mail or national overnight
delivery service addressed (I)to Seller, at the address set forth
above with a copy to Seller's attorneys as follows: Xxxxx Xxxxxx,
Esq., Xxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; (ii) to
Purchaser at the address set forth above with a copy to
Purchaser's attorney as follows: Xxx XxXxxxxxx, Esq., Home
Properties, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000. Either
party may designate by notice in writing a new or other address
to which such notice or demand shall thereafter be so given, made
or mailed. Any notice given hereunder (I) by mail shall be deemed
delivered when deposited in a United States general or branch
post office, enclosed in a certified, prepaid wrapper, return
receipt requested addressed as hereinbefore provided or (ii) by
express mail or national overnight delivery service shall be
deemed delivered when delivered by such service or when delivery
is refused.
b) Copies required to be delivered to the parties' attorney
by subparagraph (a) may be delivered by (x) certified first-class
mail, return receipt requested, (y) hand or (z) any express mail
or national overnight delivery service.
c) The respective attorneys for each party shall have the
right, but not the obligation, to give any notice or demand on
behalf of its respective client and any such notice or demand so
given by such attorney shall be deemed to have been given by such
attorney's client.
TWENTY-FIRST a) Seller and Purchaser hereby designate Xxxxx
Xxxxxx, Esq., ("Xxxxxx") Xxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as Escrow Agent to receive and hold subject to the
provisions of this Paragraph TWENTY-FIRST the Deposit delivered
herewith by
Page 17
Purchaser in accordance with Paragraph FIRST hereof and Xxxxx
Xxxxxx agrees to act as such Escrow Agent subject to the
provisions of this Paragraph TWENTY-FIRST. All interest earned on
the Deposit shall be paid to the party entitled to the Deposit
hereunder and wherever the term "Deposit" is used herein,
same shall be deemed to mean the "Deposit" and all
interest earned thereon.
b) On receipt by Xxxxxx of a statement executed by
Purchaser, prior to, on or after the Closing Date that title to
the Premises has not closed under this Agreement because of a
default by Seller under this Agreement or because of Seller's
inability to convey title to the Premises in accordance with the
provisions of this Agreement or if the Contract is terminated,
Xxxxxx shall, within two (2) business days, deliver a copy of
said statement to Seller and return the Deposit to Purchaser on
the fifth (5th) business day after receipt by Xxxxxx of said
statement unless Xxxxxx, prior to such return, receives from
Seller a statement contesting the accuracy of Purchaser's
statement and demanding retention of said Deposit by Xxxxxx.
c) On receipt by Xxxxxx of a statement executed by Seller
prior to, on or after the Closing Date that title to the Premises
has not closed under this Agreement because of a default by
Purchaser under this Agreement, Xxxxxx shall, within two (2)
business days, deliver said statement to Purchaser and deliver
the Deposit to Seller on the fifth (5th) business day after
receipt by Xxxxxx of such statement by Seller unless Xxxxxx prior
to such delivery receives from Purchaser a statement contesting
the accuracy of Seller' s statement and demanding retention of
said Deposit by Xxxxxx.
d) On receipt by Xxxxxx of a statement from Seller under
subparagraph "b" above or from Purchaser under subparagraph "c"
above, Xxxxxx shall retain the Deposit and thereafter deliver
Page 18
the same to either Seller or Purchaser as Seller or Purchaser may
direct by a statement executed by them both, provided Xxxxxx may,
at any time after receiving such a statement to retain the
Deposit transfer the Deposit to a court of competent jurisdiction
for such disposition as may be directed by such court.
e) Xxxxxx shall not be liable to either Seller or Purchaser
in connection with its performance as Escrow Agent hereunder
except in the event of willful misconduct or gross negligence.
f) Upon delivery of the Deposit to either Purchaser, Seller
or a court of competent jurisdiction under and pursuant to the
provisions of this Paragraph TWENTY-FIRST. Xxxxxx shall be
relieved of all liability, responsibility or obligation with
respect to or arising out of the Deposit and any and all of its
obligations arising therefrom.
g) The parties hereby agree to indemnify Xxxxxx for, and
hold Xxxxxx harmless against, any loss, liability or expense,
incurred without willful misconduct or gross negligence on the
part of Xxxxxx, arising out of, in connection with, its
acceptance of, or the performance of, its duties and obligations
under this Agreement, as well as the costs and expenses of
defending against any claim or liability arising out of or
relating to this Agreement. This subparagraph shall survive the
Closing Date.
h) Xxxxxx shall be fully protected in acting on and relying
upon any written advice, certificate, notice, direction,
instrument, request or other paper or document which Xxxxxx in
good faith believes to be genuine and to have been signed or
presented by the proper party or parties. Xxxxxx may assume that
any person purporting to give such advice, certificate, notice,
direction,
Page 19
instrument, request or other paper or document has been duly
authorized so to do. Xxxxxx assumes no responsibility for the
accuracy of the recitals thereof. This subparagraph shall
survive the Closing Date.
TWENTY-SECOND: : Seller shall not be required to perform any
repairs and/or restoration of any apartment at the Premises after
the tenant thereof vacates the same other than ordinary cleaning
and repainting required to re-rent the same.
TWENTY-THIRD: Subject to the terms of Paragraph SIXTEENTH
hereof, no liens, encumbrances or defects affecting title to the
Premises on the Closing Date, except as stated in this Agreement,
shall be objections to title provided that the same may be
satisfied, discharged or released of record upon the payment or
deposit of a fixed sum of money and the Title Company marks same
"omitted" from the title policy, and provided further that Seller
allows to Purchaser out of the purchase price the said sum
together with interest and penalties to the day reasonably
required by the Title Company and the approximate amount of any
filing, docketing or recording fees. In the event the cost of
curing such liens, encumbrances and defects exceeds the sum or
$25,000, Seller shall have the option of terminating this
Contract.
TWENTY-FOURTH: The provisions of Section 5-1311 of the
General Obligations Law shall apply to the sale and purchase
provided for in this Contract.
TWENTY-FIFTH: Except as hereinafter provided, this Agreement
may not be assigned by Purchaser and any assignment or attempted
assignment by Purchaser shall constitute a default by Purchaser
hereunder. Notwithstanding the foregoing, this Agreement may be
assigned by Purchaser to an entity controlled by Home Properties
of New York, Inc. so long as Purchaser delivers to Seller,
Page 20
at least twenty (20) days prior to the Closing Date:
I) a copy of the written assignment and assumption
agreement, in form and substance satisfactory to Seller.
TWENTY-SIXTH: (a) On the Closing Date Seller shall pay any
and all New York State Real Property Transfer Taxes imposed by
Section 1402 of Article 31 of the New York State Tax Law, and
will also deliver to Purchaser copies of the returns required by
the said statutes and the regulations issued pursuant to the
authority thereof, duly signed and sworn to by Seller; Purchaser
and Seller agree to sign and swear to the said returns and Seller
shall cause said returns to be delivered to the Title Company on
the Closing Date.
(b) Purchaser, if request is made within three (3) days
prior to the Closing Date, shall provide at the Closing a
separate certified or official bank check drawn on any banking
institution described in Paragraph FIRST in the amount of the
taxes under this Paragraph TWENTYSIXTH, which amount shall be
credited against the balance of the Purchase Price payable at the
Closing.
The provisions of this Paragraph TWENTY-SIXTH shall survive
the delivery of the deed.
TWENTY-SEVENTH: At the Closing, Seller shall deliver the
following to Purchaser: a) Bargain and Sale Deed with covenants
against grantor's acts.
b) Xxxx of Sale of personal property.
c) Assignment of Leases.
d) To the extent they are in Seller's possession or control,
all lease files and leases.
e) A certified schedule of all security deposits certified
by the Seller and, the most recent reports with respect thereto
issued by each banking organization in which they are deposited
pursuant
Page 21
to GOL Section 7-103D and a check or credit to Purchaser in the
amount of any cash security deposits, including any interest
thereon, held by Seller on the Closing Date.
f) A schedule, prepared by the Seller updating the rent
schedule and setting forth all arrears in rents and all
prepayments of rents, all summary proceedings and copies of all
documents relative thereto.
g) All Maintenance Contracts which are in effect on the
Closing Date.
1. h) Assignment of Maintenance Contracts.
I) To the extent they are then not posted at the Premises,
copies of certificates of occupancy, certificates, .licenses,
permits, authorizations and approvals issued for or with respect
to the Premises by governmental and quasi-governmental
authorities having jurisdiction, provided they are in Seller's
possession.
j) Such affidavits as Purchaser's title company shall
reasonably require in order to omit from its title insurance
policy all exceptions for judgments, bankruptcies or other
returns against persons or entities whose names are the same as
or similar to Seller's name.
k) (1) Checks to the order of the appropriate governmental
authorities in payment of all applicable real property transfer
taxes and copies of any required tax returns therefor executed by
Seller, which checks shall be certified or official bank checks
if required by the taxing authority, unless Seller elects to have
Purchaser pay any of such taxes on reasonable prior notice (not
less than three (3) days) and credit Purchaser with the amount
thereof, and (2) a certification of non-foreign status, in form
required by the code Withholding Section, signed under penalty
of perjury. Seller understands that such certification will be
retained by Purchaser and will be made available to the
Page 22
Internal Revenue Service on request.
l) An original letter, executed by Seller or by its agent,
advising the tenants of the sale of the Premises to Purchaser and
directing that rents and other payments thereafter be sent to
Purchaser or as Purchaser may direct.
m) Possession of the Premises in the condition required by
this Contract, subject to the leases and tenancies, and keys
therefor.
n) Any other documents required by this Contract to be
delivered by Seller or reasonably requested by Purchaser.
At the Closing, Purchaser shall:
1 ) Deliver to Seller checks in payment of the portion of
the Purchase Price payable at the Closing as adjusted for
apportionments, plus the amount of escrow deposits, if any,
assigned pursuant to this Contract.
2) Deliver to Seller an agreement indemnifying and agreeing
to defend Seller against any claims made by tenants with respect
to tenants' security deposits in accordance with Exhibit C
hereof.
3) Cause the deed to be recorded, duly complete all required
real property transfer tax returns and cause all such returns and
checks in payment of such taxes to be delivered to the
appropriate officers promptly after the Closing.
4) Deliver any other documents required by this Contract to
be delivered by Purchaser or reasonably requested by Seller.
TWENTY-EIGHTH: If a search of title discloses judgments,
bankruptcies, or other returns
Page 23
against other persons having names the same as or similar to that
of Seller, Seller will on request deliver to Purchaser an
affidavit showing that such judgments, bankruptcies or other
returns are not against Seller.
TWENTY-NINTH: Purchaser represents the following, which
representations shall survive the Closing Date:
a) Purchaser is or will be at closing, a New York limited
partnership, validly existing and in good standing under the laws
of the State of New York.
b) Purchaser has full power and authority and has taken all
corporate or partnership action, as the case may be, necessary to
enter into and perform the terms, covenants and conditions of
this Contract.
c) The execution, delivery, performance and consummation of
the transaction contemplated by this Contract do not and will not
(i) contravene any provisions of the partnership agreement and
certificate of Purchaser, (ii) conflict with or result in a
breach of any agreement or instrument to which Purchaser is a
party, or by which any of Purchaser's properties or assets are
bound, (iii) violate or require any consent or approval under any
judgment, injunction, order, writ, license or decree of any court
of governmental authority applicable to Purchaser, or (iv)
require any consent or approval of, notice to or filing,
registration or qualification with, any governmental authority
other than as contemplated by ( 1 ) any state or local sales tax
laws, and (2) the New York State Real Estate Transfer Tax. This
Contract has been, and at the Closing the other instruments and
documents required or contemplated hereby will have been, duly
authorized, executed and delivered by Purchaser and this Contract
constitutes, and such other instruments and documents when
Page 24
delivered will constitute, the valid and binding obligations of
Purchaser, enforceable against it in accordance with their
respective terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies).
d) (I) No consent, approval or authorization of any
governmental entity is required for the execution, delivery and
performance by Purchaser of this Contract and other instruments
and documents required or contemplated hereby, and (ii) no
consent of any person is required for the execution, delivery and
performance by Purchaser of this Contract and such other
instruments, agreements and documents or the consummation of the
transactions contemplated hereby, other than the Board of
Directors of Home Properties of New York, Inc.
THIRTIETH: Seller represents the following, which
representations shall survive the Closing Date:
a) Seller is a New York limited partnership, validly
existing and in good standing under the laws of the State of New
York.
b) Seller has full power and authority and has taken all
corporate or partnership action, as the case may be, necessary to
enter into and perform the terms, covenants and conditions of
this Contract.
c) The execution, delivery, performance and consummation of
the transaction contemplated by this Contract do not and will not
(I)contravene any provisions of the partnership agreement and
certificate of Seller, (ii) conflict with or result in a breach
of any agreement or instrument to which Seller is a party, or by
which any of Seller's properties or assets are bound, (iii)
Page 25
violate or require any consent or approval under any judgment,
injunction, order, writ, license or decree of any court of
governmental authority applicable to Seller, or (iv) require any
consent or approval of, notice to or filing, registration or
qualification with, any governmental authority other than as
contemplated by ( 1 ) any state or local sales tax laws, and (2)
the New York State Real Estate Transfer Tax. This Contract has
been, and at the Closing the other instruments and documents
required or contemplated hereby will have been, duly authorized,
executed and delivered by Seller, and this Contract constitutes,
and such other instruments and documents when delivered will
constitute, the valid and binding obligations of Seller,
enforceable against it in accordance with their respective terms
(except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies).
d) (I) No consent, approval or authorization of any
governmental entity is required for the execution, delivery and
performance by Seller of this Contract and other instruments and
documents required or contemplated hereby, and (ii) no consent of
any person is required for the execution, delivery and
performance by Seller of this Contract and such other instruments
,agreements and documents or the consummation of the transactions
contemplated hereby.
e) To the best of Seller's knowledge after due inquiry,
Seller has no liability or obligation of any nature which in any
way affects or is related to the Property or the Personal
Property whether now due or to become due, absolute, contingent
or otherwise, including liabilities for taxes (or any interest of
penalties thereto) other than disclosed in this Agreement.
f) To the best of Seller's knowledge, after due inquiry,
there is no litigation, proceeding
Page 26
or investigation pending, or to the knowledge of Seller
threatened, against or affecting Seller that might affect or
relate to the validity of this Agreement, any action taken or to
be taken pursuant hereto, or the Property, the Personal Property
or any part of the operation thereof, whether or not fully
covered by insurance or any proceeding pending for the increase
or decrease of the assessed valuation of all or a portion of the
Property.
g) There are no Maintenance Contracts with respect to the
Property or the Personal Property which will continue in effect
after the Closing except as set forth on Schedule 2 attached
hereto. Seller and Seller's employees and agents will not enter
into any additional Maintenance Contracts, prior to the Closing
unless such contract is terminable on no more than 30 days notice
or Purchaser has consented to such Contract.
h) There are no executory contracts connected with the
Property or the Personal Property, except as set forth on
Schedule 2 attached hereto. Seller and Seller's employees and
agents have not let, and will not let any contracts for
improvements to the Property which will not be fully completed
and fully paid for prior to Closing.
i) Until Closing, Seller shall continue to fulfill all of
its obligations under the terms of the leases encumbering the
Property, and under the Maintenance Contracts, and Seller shall
operate, maintain and repair at Seller's expense, all
landscaping, buildings, fixtures and facilities, in accordance
with normally accepted business principles, and Seller shall
continue to operate the Property in a commercially reasonable
manner.
j) All of the ranges and refrigerators located the apartment
units are the property of the Seller and not of the tenants
within
Page 27
THIRTY-FIRST: a) This Agreement shall not be altered,
amended, changed, waived, terminated or otherwise modified in any
respect or particular unless the same shall be in writing and
signed by or on behalf of the party to be charged therewith.
b) This Agreement shall be interpreted and enforced in
accordance with the laws of the State of New York. If any
provisions of this Agreement shall be unenforceable or invalid,
the same shall not affect the remaining provisions of this
Agreement and to this end, the provisions of this Agreement are
intended to be and shall be severable.
c) This Agreement shall be binding upon and shall inure to
the benefits of the parties hereto and to their respective heirs,
executors, administrators, successors and assigns.
d) All prior understandings and agreements between the
parties are merged in this Agreement which alone fully and
completely expresses the agreement between them, and which is
entered into after full investigation, neither party relying upon
any statement or representation made by the other not embodied in
reasonable construction in accordance with the intention of the
parties hereto.
e) This Agreement shall be construed without regard to or
aid of any presumption, rule or canon requiring construction
against the grantor, Seller or party drawing this Agreement.
f) This Agreement shall not be recorded by Purchaser and any
recordation or attempted recordation by Purchaser hereof shall be
void and shall constitute a default by Purchaser hereunder.
g) No failure or delay of either party in the exercise of
any right given to such party hereunder or the waiver by any
party of any condition hereunder for its benefit (unless the time
specified herein for exercise of such right, or satisfaction of
such condition, has expired) shall
Page 28
constitute a waiver of any other or further right nor shall any
single or partial exercise of any right preclude any other or
further exercise thereof or any other right. The waiver of any
breach hereunder shall not be deemed to be a waiver of any other
or any subsequent breach hereof.
h) Each party hereto shall from time to time execute,
acknowledge and deliver such further instruments and perform such
additional acts as the other party may reasonably request to
effectuate the intent of this Agreement.
I) Each of the exhibits and schedules referred to herein and
attached hereto is incorporated herein by this reference.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
SELLER:
MID-ISLAND LIMITED PARTNERSHIP
By: /s/ Mid-Island Corporation
---------------------------
By: /s/ Xxx Xxxxxx
---------------------------
PURCHASER:
Home Properties of New York, L.P.
General Partner
By: Home Properties of New York, Inc.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Escrow Agent:
/s/ Xxxxx Xxxxxx Esq.
-----------------------------
Page 29
