PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as of
the 2nd day of September, 1997 by and between
HOME PROPERTIES OF NEW YORK, L.P., a New York limited
partnership, having its principal office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (herein called "Buyer"),
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, having an office at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (herein called the
"Seller").
W I T N E S S E T H:
WHEREAS, Seller is the fee owner of certain residential
apartment complexes and adjacent land located in the Towns of
Tonawanda and Amherst, County of Erie, State of New York more
commonly known as Tranquillity Estates and the ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ Apartments, all as more particularly described below;
WHEREAS, Seller desires to sell said property to Buyer, and
Buyer desires to purchase that property from Seller, upon the
happening of certain events;
NOW, THEREFORE, in consideration of the property, mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency whereof being hereby
acknowledged, the parties hereby agree as follows:
1. REAL PROPERTY DESCRIPTION. The Real Property to be conveyed
consists of one or more parcels of land known as Tranquillity
Estates, which includes 324 apartments ("Tranquillity")▇▇▇▇▇▇▇
▇▇▇▇▇ Apartments, which includes 96 apartments ("▇▇▇▇▇▇▇") and
▇▇▇▇▇▇ Apartments, which includes 32 apartments ("▇▇▇▇▇▇")
(collectively, the "Projects"), located in the Towns of Tonawanda
and Amherst and State of New York, more particularly described on
Exhibit "A", attached hereto, together and including all
buildings and other improvements thereon, including but not
limited to, the 452 apartment units, and all rights of Seller in
and to any and all streets, roads, highways, alleys, driveways,
easements and rights-of-way appurtenant thereto (the foregoing
are hereafter collectively referred to as the "Property").
2. OTHER ITEMS. The following items now in or on the Property,
are included in this sale and shall become the property of Buyer
at Closing (as hereafter defined):
A all heating, plumbing and lighting fixtures,
B ranges (one for each apartment), refrigerators (one for
each apartment, except that some of the refrigerators at ▇▇▇▇▇▇
are owned by residents), and dishwashers (one for each apartment
at Tranquility),
C water heaters,
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D any and all bathroom fixtures, wall-to-wall carpeting,
traverse rods, exhaust fans, hoods, signs, screens, maintenance
building, model unit furniture, fences, carpeting and runners,
cabinets, mirrors, shelving, any humidifier and dehumidifier
units, air conditioning units other than such units owned by
tenants, mail boxes, office furniture, and related equipment, if
any, in connection with the Project,
E any fixtures appurtenant to the Property and any other
furniture or equipment, used in connection with the operation and
maintenance of the Property (hereinafter with the items listed in
A-D above, collectively, the "Other Items").
Seller's interest in the Other Items will be transferred to
Buyer by absolute ▇▇▇▇ of Sale in substantially the form attached
hereto as Exhibit B. Seller makes no warranties, representations
or covenants with respect to the condition of the Other Items.
Seller shall convey the Other Items to Buyer in their current "as
is" condition, subject to reasonable wear and tear.
3. EXCEPTIONS. Buyer agrees to accept title to the Property
subject only to the following:
A. Restrictive covenants of record common to the tract or
subdivision, provided same have not been violated, unless said
violations have been released under Section 2001 of the Real
Property Actions and Proceedings Law.
B. Water line, sanitary sewer, drainage, gas line and
main, electrical, telephone easements and other easements of
record provided that, no building or other improvements,
including Project signage, are located over the area covered by
such easement or are adversely affected.
C. The existing financing that is secured by the Property
(the "Existing Loan") in the event that Buyer elects to assume
such Existing Loan and provided that such Existing Loan is
current and is not in default and no event which could result in
a default shall be in existence on the Closing Date (as
hereinafter defined
4. PRICE AND MANNER OF PAYMENT.
A. The purchase price for the Property shall be a total of
Eleven Million Three Hundred Thousand and NO/100 ($11,300,000)
(the "Purchase Price") payable as follows: (i) by payment of
$10,000 (the "Deposit") as a deposit; (ii) by assumption of the
Existing Loan if Buyer so elects to assume the Existing Loan; and
(iii) the remainder payable at Closing by check or by wire
transfer to an account designated by Seller.
B The Deposit shall be paid to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
(the "Escrow Agent"), who shall deposit that amount in an
interest bearing account. The Deposit (with interest) shall be
applied against the Purchase Price at Closing. The Deposit shall
be forfeited to Seller as Seller's sole remedy and as liquidated
damages if Buyer fails to complete this transaction for any
reason other than a termination of this Agreement as permitted
herein. In the event of such a termination, Seller
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shall promptly instruct the Escrow Agent to refund the Deposit
(with interest) to Buyer and upon the return of the Deposit this
Agreement shall wholly cease and terminate and neither party
shall have any further claim against the other by reason of this
Agreement.
5. ADJUSTMENTS AT CLOSING. The following shall be adjusted and
prorated between the parties at Closing as if the Buyer was the
owner of the Property as of midnight of the night preceding the
Closing Date:
A current fiscal year real estate taxes,
B water charges,
C sewer charges,
D fuel,
E electricity,
F all rentals and security deposits (including interest
thereon) pursuant to the leases,
G charges under the Service Contracts,
H laundry income;
I interest on the Existing Loan and any reserves required
under the Existing Loan;
J any other charges incurred with respect to the Property
which Seller is obligated to pay; and
K Rents.
(1) All rent payments due for the month of Closing
shall be deemed collected by the Seller and prorated as
between the parties as of the Closing.
(2) All rent collected after Closing, for any period
prior to Closing, shall belong to Seller and, if paid to
Buyer, Buyer shall promptly send such rent to Seller.
(3) All rent collected by Seller, prior to the Closing,
for rental periods subsequent to Closing shall be paid to
Buyer at Closing.
(4) All rent collected by Buyer or Seller for rental
periods after the Closing shall belong to Buyer and, if paid
to Seller, Seller shall promptly send such rent to Buyer.
The Buyer agrees to use reasonable efforts after the
Closing to collect delinquent rentals owed to the Seller,
provided that nothing herein shall require Buyer to institute
legal proceeding against any resident whose rental payments are
delinquent.
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Any rents collected after Closing which are applicable to
arrearages which arose prior to Closing shall be paid by Buyer to
Seller, net of the expenses of collection. If Buyer fails to
collect any rents due to Seller within 90 days following the
Closing, the Seller may proceed to collect the same in their own
name. Nothing herein shall make the Buyer liable to the Seller
for any failure to collect arrearages.
In addition, to the extent that the holder of the Existing
Loan requires that any reserves and escrows established by the
Seller remain in place after the Closing, the Buyer shall make
a payment to the Seller in the amount of the reserves and escrows
in place on the Closing Date, such payment to be made on the
Closing Date and in the same manner as the payment of the
Purchase Price.
Any error in the calculation of adjustments shall be
corrected subsequent to Closing with appropriate credits to be
given based upon corrected adjustments, provided, however,
that the adjustments (except if errors are caused by
misrepresentations) shall be final upon
expiration of the sixtieth day after Closing.
6. COSTS. Buyer shall pay all recording fees, Buyer's
attorneys' fees, the costs of obtaining a binder or commitment
from a title insurance company, the premium for Buyer's title
insurance policy, if Buyer elects to assume the Existing Loan any
assumption fees or other costs charged by the holder of the
Existing Loan in connection with the assumption of the Existing
Loan, and all other costs and expenses incidental to or in
connection with closing this transaction customarily paid for by
the purchaser of similar property. Seller shall pay the transfer
tax, attorneys' fees, if any, incurred by Seller in connection
with this transaction, and all other costs and expenses
incidental to or in connection with closing this transaction
customarily paid for by the seller of similar property.
7. SEARCH AND SURVEY. The Seller shall order within ten (10) days
after the date of this Agreement fully guaranteed tax, title and
United States District Court searches, and searches under the
Uniform Commercial Code of records in the appropriate offices as
against the Sellers, dated or redated subsequent hereto, and a
copy of the most recent title policies and instrument survey(s)
of the Property. Prior to Closing, the Seller shall deliver to
Buyer an update of the instrument survey(s) previously delivered,
dated or redated subsequent hereto certified to such persons and
organizations as may be designated by Buyer, made by a land
surveyor duly licensed by the State of New York, showing the
boundaries of the land conveyed hereunder, all improvements
thereon and the location of all easements, all improvements
thereon and the location of all easements, rights-of-way or
similar encroachments affecting same, prepared and certified in
accordance with the code of practice adopted by the New York
State Association of Professional Land Surveyors. Notwithstanding
the foregoing, the redated survey(s) must not differ in any
material respects from the survey initially delivered to and
reviewed by Buyer. The Seller shall pay for the continuation of
said tax, title, United States District Court, local tax and
Uniform Commercial Code searches to and including the date of
Closing and for any required revenue stamps in connection with
the transfer.
8. INSPECTION. Upon and after acceptance of this Agreement by
Seller, Seller agrees that Buyer and its authorized
representatives shall have the right and privilege to enter
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upon the Property and Seller's offices, upon reasonable notice,
during regular business hours, for the purpose of gathering such
information and conducting such environmental and engineering
studies or other tests and reviews as Buyer may deem appropriate
and necessary. All such inspections, studies, tests and reviews
shall be at Buyer's sole expense. Seller agree to cooperate with
Buyer by making available to Buyer such records, plans, drawings
or other data as may be in Seller's possession or control
relating to the Property and its operation; provided, however,
that Buyer agrees to indemnify Seller of and from any loss or
damage occasioned by such entry, and agrees further to restore to
its original condition, at Buyer's own cost and expense, any
property disturbed by such entry.
9. TITLE DOCUMENTS. At the time of Closing, Seller shall
deliver to Buyer the following:
A A warranty deed conveying good and marketable title to
the Property.
B A ▇▇▇▇ of Sale conveying good title, free of all
encumbrances to the Other Items.
C A current rent roll ("Rent Roll") certified, as of the
date of Closing, which shall include a list of all tenants, all
rental obligations of each tenant with respect to the Property
and all security deposits (with interest).
D Complete originals of each lease listed on the Rent
Roll, together with an assignment of all leases encumbering the
Property to Buyer in substantially the form attached hereto as
Exhibit C and in recordable form.
E An assignment, assumption, and indemnity agreement of
all of Seller's rights and obligations to all contracts affecting
the Property (the "Service Contracts).
F An assignment, assumption, and indemnity agreement
whereby the security deposits (including interest thereon) are
transferred to the Buyer, who shall assume the responsibility
therefor. In lieu of an assignment of the security deposits, the
Seller may provide Purchaser with a credit at Closing for all
security deposits (with interest thereon) held by Seller with
respect to all leases encumbering the Property. In either case,
Buyer will indemnify and hold the Seller harmless from any claims
from residents with respect to security deposits transferred to
Buyer or for which Buyer is provided a credit at Closing as the
case may be.
10. TITLE EXAMINATION; OBJECTIONS TO TITLE.
A Within ten (10) banking days after receipt of the title
and survey documents described in Section 7 above, Buyer agrees
to furnish to Seller's attorneys a specification in writing of
any objection to title that Buyer believes it is not required to
take title subject to, which shall not include the exceptions
permitted in Section 3 of this Agreement. Seller may, but shall
not be required to, bring any action or proceedings or take such
other action as may be appropriate to render title to the
Property marketable.
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B Seller shall have ten (10) banking days from receipt of
notice, if any, from Buyer of its title objections within which
it must notify Buyer in writing if it cannot cure.
C In the absence of such notice from Seller, Seller shall
be obligated to cure the title objections, if any, made by Buyer.
If Seller notifies Buyer that Seller is unable to convey good and
marketable title to the property described above, subject to and
in accordance with the provisions of this contract, or is not
able or unwilling to obtain a commitment for title insurance and
thereafter pay the premium for said title insurance to insure the
exception(s) on behalf of the Buyer then, except as hereinafter
provided, Buyer may elect, by written notice to Seller, to
either:
(1) terminate this Agreement by notice delivered to the
Seller within five (5) banking days of receipt of Seller's
notice that Seller cannot cure the title objections, or is
unwilling or unable to obtain title insurance in which event
this Agreement shall wholly cease and terminate, and neither
party shall have any further claim against the other by
reason of this Agreement; or
(2) Notwithstanding anything to the contrary contained
herein, Buyer 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 and if Buyer elects to do
so, Seller shall have no right to terminate this Agreement
as hereinabove provided. The acceptance of the deed by Buyer
shall be deemed to be a 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 delivery of the deed.
(3) If a search of the title discloses judgments,
bankruptcies or other returns against other persons having
names the same as or similar to that of Seller, Seller will
on request deliver to Buyer an affidavit showing that such
judgments, bankruptcies or other returns are not against
Seller.
11. USE OF PROPERTY. Seller represents that, to the best of
Seller's knowledge, the Property and any improvement thereon are
in full compliance with restrictive covenants, statutes,
ordinances, regulations, and/or other administrative enactments
including, but not limited to building codes and zoning
ordinances for the present use as a multi residential dwelling.
12. CLOSING DATE. The Closing shall occur on the earlier of: (i)
within 15 days after the end of the Due Diligence Period (as
hereinafter defined); or (ii) receipt of the consent by the
holder of the Existing Loan to the transaction contemplated
herein and the assumption by the Buyer of the borrower's
obligations under the Existing Loan, (the "Closing" or "Closing
Date") at the Seller's office, or at such other time and place as
may be mutually agreed upon.
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13. POSSESSION. Buyer shall have possession and occupancy of the
Property from and after the date of delivery of the deed, subject
only to matters herein provided for.
14. BROKER'S COMMISSION. Buyer represents to Seller that it did
not employ any broker in connection with this sale. Seller
represents to Buyer that it did not employ any broker in
connection with this sale except for Network One Realty and that
Seller shall be responsible for the payment of all fees and
commissions to that broker. Seller and Buyer each agree to
indemnify the other for any and all claims and expenses,
including legal fees, if any other fees or commission is
determined to be due by reason of the employment of any other
broker by the indemnifying party. This representation and
indemnity shall survive the Closing.
15. RISK OF LOSS. The risk of loss or damage to more than 50% of
the Seller's interest in each of Tranquility, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
by fire or other casualty or by taking by eminent domain, until
Closing, shall be assumed by Seller and upon the happening of
such event, Buyer shall have the election of terminating this
Agreement without further liability hereunder, or of completing
this purchase and receiving the Seller's share of insurance
monies, collectible for such loss or damage, or the award for
such taking by eminent domain. Notwithstanding the above, Buyer
may terminate this Agreement as it relates to ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
in the event that more than 50% of Tranquility is so damaged or
condemned.
16. CONDITIONS PRECEDENT.
A It shall be a condition to Buyer's obligations to close
that all of the representations and warranties of the Seller are
true and correct as of the Closing;
B It shall be a condition to Buyer's obligation to close
that there are at Closing 452 apartment units in rentable
condition, and to the best of Seller's knowledge which are all in
compliance with federal, state, county or local laws, ordinances,
rules and regulations;
C Buyer shall have thirty (30) days after the date of
this Agreement (the "Due Diligence Period") within which to
review and inspect the Property and the Other Items (including,
but not limited to, performing engineering and Phase I
environmental studies), the Seller's books and records pertaining
to the Property and the Other Items, matters relating to zoning
compliance and compliance by the Property and the Other Items
with other applicable governmental regulations, the market in
which the Property operates, the documents relating to the
Existing Loan, the tax assessment on the Property as it relates
to the purchase price and to the assessment on comparable
properties, service contracts, executory contracts and such other
matters as Buyer shall deem reasonably necessary or appropriate
in connection with the Property and the Other Items. If Buyer
determines that it does not wish to purchase the Property and the
Other Items as a result of its findings during the Due Diligence
Period and notifies Seller of such decision within the Due
Diligence Period, this Agreement shall be null and void and
neither party shall have any further rights or obligations under
this Agreement. Buyer's failure to object within the Due
Diligence Period shall be deemed a waiver by Buyer of the
condition contained in this Section 8(C).
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It is understood that the contingencies set forth herein are
for Buyer's benefit and may be waived by Buyer at any time. If
the above contingencies are not satisfied or waived by the Buyer,
the Buyer shall have the right to terminate this Agreement by
written notice to Seller. In the event of such a termination,
this Agreement shall be null and void and neither party shall
have any further rights or obligations under this Agreement.
17. ENVIRONMENTAL CERTIFICATION. By acceptance of this Agreement,
Seller represents, warrants, and certifies to Buyer that Seller
has no knowledge of any violation, and has received no notice of
any violation of any applicable Environmental Laws (below
defined). To the best of Seller's knowledge, Seller has not, nor
has any other person, used, generated, stored, dumped, released,
buried, dispersed or emitted any Hazardous Substance on the
Property nor are there any transformers or underground tanks on
the Property, nor is there a violation of any Environmental Laws
with respect to the current use of the Property. "Environmental
Laws" shall mean all federal, state and local environmental,
health, chemical use, safety and sanitation laws, statutes,
ordinances and codes relating to the protection of the
environment and/or governing the use, storage, treatment,
generation, transportation, processing, handling, production or
disposal of any Hazardous Substance and the rules, regulations,
and orders with respect thereto. "Hazardous Substance" means,
without limitation, any flammable, explosive or radioactive
material, polychlorinated biphenyl, petroleum or petroleum
product, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials, as defined in
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Appendix Sections 1801, et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections
6901, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. Sections 2601, et seq.), Articles 15 and 27 of the New
York State Environmental Conservation Law or any other
Environmental Law and the regulations promulgated thereunder
applicable on the effective date of this Agreement. From the date
of acceptance hereof to and including the date of Closing, Seller
shall immediately provide Buyer with a copy of any notice,
citation, complaint or other directive from any person, entity or
governmental authority whereby Seller's compliance with
Environmental Laws is called into question, and immediately
notify Buyer of any new information or other developments which
could tend to supplement or modify the information contained
herein.
18. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents
and warrants to Buyer as of the date hereof and as of Closing,
that:
A 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 Other Items
whether now due or to become due, absolute, contingent or
otherwise, including liabilities for taxes (or any interest or
penalties thereto) other than disclosed in this Agreement.
B To the best of Seller's knowledge, after due inquiry,
there is no litigation, proceeding or investigation pending, or
to the knowledge of Seller threatened, against or affecting
Seller that might affect or relate to the validity of this
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Agreement, any action taken or to be taken pursuant hereto, or
the Property, the Other Item or any part or 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.
C To the best of Seller's knowledge after due inquiry,
Seller has complied with and is not in default under, or in
violation of, or received any notice that the Seller, the
Property or the Other Items may be in violation of, any law,
ordinance, rule, regulation or code or condition in any approval
or permit pursuant thereto (including without limitation, any
zoning, sign, environmental, labor, safety, health or price or
wage control, ordinance, rule, regulation or order of) applicable
to the ownership, development, operation or maintenance of the
Property or the Other Items.
D There are no written leases affecting the Property with
a term greater than one (1) year.
E To the best of Seller's knowledge after due inquiry,
there is no pending condemnation of the Property, or any part
thereof, or of any plans for improvements which might result in a
special assessment against the Property.
F Seller has not received any written notice or request
from any insurance company, Board of Fire Underwriters (or
organization exercising functions similar thereto) requesting the
performance of any work or alteration in respect of the Property
or the Other Items.
G Security deposits held by Seller will be correctly
identified by Seller as of Closing with respect to the Property.
H [Reserved]
I 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.
J Until Closing, Seller shall continue to fulfill all of
its obligations under the terms of the Leases encumbering the
Property, and under the Service 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.
K The Rent Roll to be given by Seller to Buyer at Closing
will be true and correct.
L The financial information previously provided to Buyer
with respect to the Property is substantially accurate.
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M All of the ranges and refrigerators located within the
apartment units are the property of the Seller and not of the
tenants, except with respect to certain of the refrigerators at
▇▇▇▇▇▇.
N This Agreement has been duly authorized, executed and
delivered and constitutes a legal and binding obligation of
Seller, enforceable in accordance with its terms, except as may
be limited by bankruptcy and other laws affecting creditors'
rights generally.
O Neither the entry into this Agreement, nor the carrying
out of the transactions contemplated herein has resulted or will
result in any violation of, or be in conflict with, or result in
the creation of, any mortgage, lien, encumbrance or charge (other
than those contemplated hereby) upon any of the properties or
assets of Seller pursuant to, or constitute a default under, any
certificate of incorporation, by-law, partnership agreement, or
mortgage, indenture, contract, agreement, instrument, franchise,
permit, judgment, decree, order, statute, rule or regulation
applicable to Seller or the Property.
P To the best of Seller's knowledge, no consent or
approval by, or authorization of, or filing, registration or
qualification with, any federal, state or local governmental
authority, bureau, department or agency, or any corporation,
person or other entity is required as of the Closing either for
the execution, delivery or performance of this Agreement by
Seller, or in connection with the consummation by Seller of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, filings, registrations or
qualifications as have been obtained by Seller as of the date
hereof and disclosed and accepted by Buyer.
Q Seller shall permit Buyer to examine and copy all of
the leases encumbering the Property, including all additions,
amendments or modifications thereto as provided herein. Seller
shall not accept any prepayment in excess of one month of any
rent due under any leases with respect to the Property.
The representations and warranties of Seller contained in this
Agreement, the statements in any Exhibit or Schedules attached to
this Agreement, or other instruments furnished to Buyer at or
prior to Closing pursuant to this Agreement, or in connection
with the transactions contemplated by Seller pursuant to this
Agreement, do not contain any untrue statements of a material
fact, or fail to state a material fact necessary to make it not
misleading.
The representations and warranties contained herein shall survive
delivery and recording of the deed and shall not merge therein.
Seller acknowledges that each of the representations made by it
in this paragraph 18 and elsewhere in this Agreement is material
to Buyer hereunder. As to any representation or warranty set
forth herein, Seller shall indemnify, defend and hold Buyer sale
and harmless from and against any and all loss, damage, claim,
counterclaim, cause of action, cost or expense, including,
without limitation, reasonable attorneys' fees and disbursements
at both trial and appellate levels, suffered, paid or incurred
by, or asserted against Buyer, directly or indirectly, whether
foreseen or
Page 10
unforeseen, and whether for personal injury or death or for
property damage or otherwise by reason of Seller's breach of any
warranty or obligation under this Agreement or if any
representation of Seller in this Agreement is wholly or partially
untrue.
Irrespective of anything to the contrary contained herein the
representations and warranties of Seller, herein contained, shall
expire and be of no further effect upon the expiration of 12
months after Closing. This expiration shall not apply to any
breach of warranty or representation which arises out of fraud or
an intentional material misrepresentation made by Seller.
19. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as of the date hereof and as of the Closing:
(a) Buyer is and will be as of the date of Closing duly
organized, validly existing and in good standing under the laws
of the State of New York and has all the requisite power and
authority to enter into and carry out this Agreement according to
its terms.
(b) Subject to the receipt of the approval of the Board,
this Agreement has been duly authorized, executed and delivered
and constitutes a legal and binding obligation of Buyer,
enforceable in accordance with its terms, except as may be
limited by bankruptcy and other laws affecting creditors' rights
generally.
(c) To the best of its knowledge after due inquiry, there is
no litigation, proceeding or investigation pending, or to the
knowledge of Buyer threatened, against or affecting Buyer or the
partners of Buyer that might affect or relate to the validity of
this Agreement or any action taken or to be taken pursuant
hereto, or that might have a material adverse effect on the
business or operations of the Buyer.
20. ASSIGNMENT. This Agreement, and all rights of Buyer
hereunder, may be assigned by Buyer to any affiliate without
Seller's prior consent. Any other assignment by Buyer
shall require the Seller's prior written consent, which consent
shall not be unreasonably withheld. Any assignment by the Buyer
shall not relieve the Buyer of any obligation of the Buyer
created by this Agreement. Seller may convey its interest in the
Property to an affiliate without the Buyer's prior written
consent, provided that the assignee shall agree in writing to be
subject to the terms of this Agreement.
21. NOTICE. All notices given pursuant to any provisions of this
Agreement shall be in writing and shall be effective only if
delivered personally, or sent by registered or certified mail,
postage prepaid or sent by a national over night carrier, to the
addresses set forth below:
To Seller: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
To Buyer:
HOME PROPERTIES OF NEW YORK, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
22. PLANS, WARRANTIES AND GUARANTIES. Seller agree to provide
Buyer with all plans and architectural drawings in Seller's
possession for the improvements completed at the Property,
including, without limitation, all "as-built" plans in Seller's
possession and Seller further agrees that it will endeavor to
turn over the same to Buyer promptly upon execution of this
Agreement. Seller shall assign to Buyer at Closing any and all
guaranties and warranties Seller has with respect to the
Property, the improvements thereon, and the equipment relating to
the Property, if any.
23. APPLICABLE LAW. This Agreement shall be construed and
governed in accordance with the laws of the State of New York.
24. ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties, and any and all prior
understandings or agreements, whether written or oral, are
hereby merged into this Agreement. This Agreement cannot be
modified except by a written instrument signed by the parties
hereto.
25. BINDING AGREEMENT. This Agreement shall not be binding or
effective until properly executed by Buyer and Seller.
26. CONFIDENTIALITY. By execution of this Agreement and except as
otherwise provided herein, prior to the Closing each of Seller
and Buyer agree to keep any and all information with respect to
the transactions contemplated by this Agreement strictly
confidential, and will not disclose any such information, without
the other's prior written consent. Buyer may disclose the
existence of this Agreement to the extent necessary to conduct
its due diligence with respect to the Property.
27. FINANCIAL ACCESS. Seller will provide a signed representation
letter in substantially the form attached hereto as Exhibit Dto
enable an Independent Public Accountant to render an opinion on
such financial statements. Seller will provide access by Buyer's
representatives, to all financial and other information relating
to the Property as is sufficient to enable them to prepare
audited financial statements, at Buyer's expense, in
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conformity with Regulation S-X of the Securities and Exchange
Commission (the "Commission") and any registration statement,
report or disclosure statement required to be filed with the
Commission.
28. JOINT AND SEVERAL. The obligations hereunder of each of the
two individuals who constitute the Seller shall be joint and
several.
29. PAYMENTS WITH RESPECT TO TAX ASSESSMENT REDUCTIONS. The
parties acknowledge that Seller engaged the services of Real
Property Services in connection with tax assessment reductions
for each of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Tranquility. The parties further
acknowledge that Real Property Services was successful in having
the tax assessment reduced in each case and that pursuant to the
Agreement between Seller and Real Property Services, Seller owes
Real Property Services one half of the tax savings for each
project. Heretofore, Real Property Services submitted to Seller
invoices for each project, said invoices being attached hereto as
Exhibit E. The parties further acknowledge that Seller has paid
Real Property Services the amount due for the ▇▇▇▇▇▇▇ project,
however, the invoices for ▇▇▇▇▇▇ and Tranquility remain unpaid.
The parties hereby agree that Buyer will receive the benefit of
the tax assessment reduction and, therefore, will be responsible
for and assume the obligations of Seller to Real Property
Services including reimbursement to Seller of the monies
heretofore paid by Seller. Payment by Buyer will take place at
Closing and will appear as an adjustment on the closing
statement.
IN WITNESS WHEREOF, the parties hereto have caused this
Instrument to be executed as of the day and date first above
written.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________
Title: Chairman
__________________________
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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