EXHIBIT 10.63
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is dated as of this 1st
day of January, 2004, and is between Home Properties of New York, L.P., a
limited partnership formed under the laws of the State of New York (the
"Operating Partnership"), Home Properties Management, Inc., a corporation formed
under the laws of the State of Maryland ("HPMI") and Home Leasing, LLC, a
limited liability company formed under the laws of the State of New York (the
"Purchaser").
WITNESSETH:
WHEREAS, the Purchaser desires to purchase tangible and intangible property
used in conjunction with its real estate business in exchange for cash; and
WHEREAS, the Operating Partnership desires to sell such assets;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION
1.1 Agreement to Purchase. Subject to the terms and conditions of this
Agreement, the Purchaser shall purchase the assets identified on Exhibit A
hereto (the "Assets") from the Operating Partnership on the "Closing Date" as
defined in Section 6.2 hereof.
1.2 Consideration. Upon the sale of the Assets by the Operating
Partnership, the Purchaser shall pay to the Operating Partnership:
(a) $14,456 in cash as consideration for the personal property set
forth on Schedule 1 to Exhibit A (the "Personal Property");
(b) $67,500 in cash as consideration for the remainder of the Assets
as set forth on Exhibit A, except for the Midtown Management
Agreement (as defined in Section 1.4(g)); and
(c) On a monthly basis, commencing in February 2004, twenty-four
percent (24%) of the aggregate of the Management Fee and the
Parking Management Fee (as defined in the Midtown Management
Agreement) received by the Purchaser pursuant to the Midtown
Management Agreement (as it may be subsequently amended) to be
paid on a monthly basis for so long as the Purchaser manages
Midtown Plaza pursuant to the Midtown Management Agreement (as it
may be subsequently amended) but not extending beyond the payment
due in January 2007, which would relate to fees received for the
month of December 2006. Payments shall be made in arrears as is
the case with the Management Fee and the Parking Management Fee
payable pursuant to the Midtown Management Agreement and shall be
paid by the Purchaser to the Operating Partnership by the
fifteenth day of each month commencing in February 2004, but in
no event no sooner than five business days after receipt by the
Purchaser of the Management Fee and the Parking Management Fee
for the applicable month pursuant to the Midtown Management
Agreement. The initial monthly amount that is anticipated to be
paid by the Purchaser to the Operating Partnership pursuant to
this subparagraph (c) is expected to be $4,600 based on current
gross receipts for Management Fee and Parking Management Fee
under the Midtown Management Agreement of $232,000 per year. With
the monthly payment, the Purchaser shall provide the Operating
Partnership with reasonable evidence of the amount of the
Management Fee and Parking Management Fee paid to the Purchaser
under the Midtown Management Agreement for the applicable month.
1.3 Assumption. Upon the sale of the Assets by the Operating
Partnership, the Purchaser shall assume all of the liabilities and
obligations associated with the Assets which arise, become due or payable,
or to be performed on or after the Closing Date.
1.4 Management Agreements. On the Closing Date, the Operating
Partnership shall deliver or shall cause HPMI to deliver the following
agreements (the "Management Agreements") to Purchaser in the form of such
agreements delivered to the Purchaser by the Operating Partnership prior to
the Closing Date:
(a) Clinton Square Management Agreement Subcontract between Home
Leasing Corporation and Home Properties Management, Inc.
dated August 5, 1994;
(b) Park Ridge Physicians' Office Building Management Agreement
Subcontract between Home Leasing Corporation and Home
Properties Management, Inc. dated August 4, 1994;
(c) Piano Works Management Agreement Subcontract between Home
Leasing Corporation and Home Properties Management, Inc.
dated August 4, 1994;
(d) Southview Commons Management Agreement Subcontract between
Home Leasing Corporation and Home Properties Management,
Inc. dated August 4, 1994;
(e) Gananda Management Agreement between Home Leasing
Corporation and Home Properties Management, Inc. dated
August 4, 1994;
(f) Fight Village Management Agreement Subcontract between Home
Leasing Corporation and Home Properties of New York, L.P.
dated August 4, 1994;
(g) Property Management Agreement for the management of Midtown
Plaza between Midtown Rochester Properties, LLC, Midtown
Parking, LLC, Home Properties Management, Inc., and Xxxx
Realty Advisors, LLC dated November 26, 2001 and amended by
Addendum to Property Management Agreement dated July 1, 2002
(the "Midtown Management Agreement");
(h) Old Brookside Management Agreement between Old Brookside
Partnership and Home Properties Management, Inc. dated
August 4, 1994;
(i) Riverton oral month-to-month Management Agreement by and
between Conifer Riverton Associates and Home Properties
Management, Inc.;
(j) The Park at Allens Creek oral month-to-month Management
Agreement by and between Xxxxxx Xxxxx and Home Properties
Management, Inc.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE OPERATING PARTNERSHIP
The Operating Partnership represents and warrants to the Purchaser as
follows:
2.1 Organization and Authorization. The Operating Partnership is a limited
partnership 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
execute, deliver and perform its obligations under this Agreement; its
execution, delivery and performance of its obligations under this Agreement do
not result in any violation of, or conflict with, any term of its charter,
bylaws, or other instrument to which it is bound or any law or regulation
applicable to it; ad its execution, delivery and performance of its obligations
under this Agreement have been duly authorized by all necessary action on its
behalf.
2.2 Execution; Enforceability. The Operating Partnership has duly and
validly executed and delivered this Agreement, and, assuming due execution and
delivery by the Purchaser, this Agreement constitutes a valid and binding
agreement enforceable against the Operating Partnership in accordance with its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally as at the time in effect and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
2.3 Title. Except as described on Exhibit A hereto, the Operating
Partnership and/or HPMI has good title with respect to the Assets, free and
clear of all security interests, liens, claims, charges or other encumbrances of
any nature whatsoever.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Contributor as follows:
3.1 Organization and Authorization. It is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
New York. It has all requisite power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
3.2 Authority Relative to this Agreement. It has full power and authority
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. All actions necessary to be taken by it or on
its behalf to execute, deliver and perform this Agreement and consummate the
transactions contemplated hereby have been duly and validly taken. This
Agreement has been duly and validly executed and delivered by it, and, assuming
due execution and delivery by the Operating Partnership, constitutes a valid and
binding agreement enforceable against it in accordance with its terms, except to
the extent that enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting the enforcement
of creditors' rights generally as at the time in effect and by general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
3.3 Consents and Approvals; No Violation. Neither the execution, delivery
and performance of this Agreement nor the consummation of the transactions
contemplated hereby: (a) conflict with or will result in any breach of any
provision of its Operating Agreement or Articles or Organization; (b) require it
to obtain any consent, approval, authorization or permit from, or file with or
notify, any governmental or regulatory authority, except where the failure to
obtain such consent, approval, authorization or permit, or to make such filing
or notification, would not have a material adverse effect on its business,
assets, financial condition or results of operation; (c) constitute a breach or
will result in default under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation of any kind to which it is a party or by which it is
bound; or (d) violate any order, writ, injunction, judgment, decree, law,
statute, rule, regulation or governmental permit or license applicable to it,
which violation would have a material adverse effect on its business, assets,
financial condition or results of operation.
3.4 No Other Representations or Warranties. Except for the representations
and warranties contained in this Article III, the Purchaser makes no
representations or warranties to the Operating Partnership, express or implied.
ARTICLE IV
COVENANTS OF THE PARTIES
4.1 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use all reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, all things
necessary under applicable laws and regulations to consummate the transactions
contemplated by this Agreement, including, but not limited to, taking any
actions necessary to cause the conditions in Article V to be satisfied. The
Operating Partnership shall execute and deliver any documents reasonably
requested by the Purchaser after the closing of this transaction to properly
document the transactions contemplated hereby and to effectively transfer title
of the Assets to the Purchaser.
4.2 Representations and Warranties. Each of the parties hereto shall give
written notice to the other party promptly upon the occurrence of, or upon
becoming aware of, either (a) the occurrence of any event which makes any
representation or warranty contained in this Agreement not true in any material
respect; or (b) any material and adverse development in the condition (financial
or otherwise) or operations of such party.
ARTICLE V
CONDITIONS OF CLOSING
5.1 Mandatory Conditions. The Operating Partnership's and the Purchaser's
obligations to close under this Agreement shall be expressly contingent upon the
satisfaction of the following contingencies:
(a) Proceedings. No action or proceeding shall have been instituted
or threatened before any court or governmental body to restrain
or prohibit, or to obtain substantial damages as a result of, the
consummation of the transactions contemplated by this Agreement;
and
(b) Approvals. All third party approvals required in order to effect
the transaction contemplated herein (the "Third Party
Approvals"). shall have been obtained.
5.2 Conditions to Operating Partnership's Obligations. The Operating
Partnership's obligation to close under this Agreement shall be expressly
contingent upon the satisfaction of the following contingencies:
(a) Representations and Warranties. The representations and
warranties of the Purchaser set forth in this Agreement shall be
true and correct in all material respects as of the Closing Date;
(b) Covenants. The Purchaser has complied in al material respects
with the covenants made by it in this Agreement to be complied
with by it from the date hereof through the Closing Date;
(c) Certificate of Purchaser. The Purchaser has delivered to the
Operating Partnership a certificate duly executed as of the
Closing Date by the managing members of the Purchaser to the
effect that the requirements in Section 5.2(a) and (b) hereof
have been satisfied; and
(d) Assumption Agreement. The Purchaser has delivered to the
Operating Partnership a counterpart of an Assignment and
Assumption Agreement in a form reasonably satisfactory to the
Operating Partnership which obligates the Purchaser to satisfy
the obligations and liabilities to be assumed by the Purchaser
pursuant to this Agreement (the "Assignment and Assumption
Agreement").
5.3 Conditions to Purchaser's Obligations. The Purchaser's obligation to
close under this Agreement shall be expressly contingent upon the satisfaction
of the following contingencies:
(a) Representations and Warranties. The representations and
warranties of the Operating Partnership set forth in this
Agreement shall be true and correct in all material respects as
of the Closing Date;
(b) Covenants. The Operating Partnership has complied in all material
respects with the covenants made by the Operating Partnership in
this Agreement to be complied with from the date hereof through
the Closing Date; and
(c) Certificate of Operating Partnership. The Operating Partnership
has delivered to the Purchaser and certificate, duly executed as
of the Closing Date, to the effect that the requirements in
Section 5.3 (a) and (b) hereof have been satisfied.
ARTICLE VI
CLOSING
6.1 Costs. The Operating Partnership and Purchaser shall cooperate with
each other in the effort to obtain the Third Party Approvals and shall pay and
bear equally the costs associated therewith. The Operating Partnership shall
also pay its own attorneys' fees and all other costs and expenses in connection
with closing this transaction as are customarily paid for by the seller of such
property. The Purchaser shall pay its own attorneys' fees and all other costs
and expenses in connection with closing this transaction as are customarily paid
for by the buyer of such property.
6.2 Closing Date. The closing shall be effective as of January 1, 2004 (the
"Closing" or "Closing Date").
6.3 Closing Documents.
(a) On the Closing Date, the Operating Partnership shall deliver to
the Purchaser the following:
(1) the Management Agreements;
(2) a duly executed Xxxx of Sale for the Personal Property;
(3) a counterpart of the Assignment and Assumption Agreement
duly signed by the Operating Partnership; and
(4) such additional documents as shall be reasonably requested
by the Purchaser.
(b) On the Closing Date the Purchaser shall deliver to the Operating
Partnership the following:
(1) a counterpart of the Assignment and Assumption Agreement
duly signed by the Purchaser; and
(2) such additional documents as shall be reasonably requested
by the Operating Partnership.
ARTICLE VII
TERMINATION AND SURVIVAL
7.1 Termination. This Agreement may be terminated at any time prior to the
Closing Date on written notice to the other party hereto by either party to the
other party in the event that a representation or warranty made by the other
party is untrue when made or at any time prior to the Closing Date or in the
event that the other party fails to comply with any covenant made by it herein
prior to the Closing Date.
7.2 Effect of Termination. Upon the termination of this Agreement pursuant
to Section 7.1, neither party shall have any further rights or obligations
hereunder,
7.3 Survival. The representations, warranties and covenants set forth
herein shall survive the consummation of the transactions contemplated by this
Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendment. This Agreement may be amended only by a writing executed by
the Operating Partnership and the Purchaser.
8.2 Waiver of Compliance. Except as otherwise provided in this Agreement,
any failure of any party to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
8.3 Entire Agreement. This Agreement, including the documents, schedules,
certificates and instruments referred to herein, embody the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Agreement. There are no restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to herein or therein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such transactions.
8.4 Assignment. This Agreement and all obligations and rights of the
parties hereunder may not be assigned by either party, except the Operating
Partnership may freely assign its obligations under Section 1.4 hereof to Home
Properties Management, Inc., a Maryland corporation.
8.5 Governing Law. This Agreement shall be governed by the laws of the
State of New York, without reference to its principles of conflicts of law.
8.6 Interpretation. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement. Article and Section references which do not otherwise specify,
are to the designated Article or Section of this Agreement.
8.7 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted. All provisions of this
Agreement shall be enforced to the full extent permitted by law,
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer
HOME LEASING, LLC
By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, Co-Chairman
JOINDER
THE UNDERSIGNED, being an owner of certain of the Assets, has joined in the
executed of this Agreement in order to evidence its agreement to sell such
Assets to Purchaser in accordance with the terms hereof, and otherwise in order
to be bound by the provisions hereof.
HOME PROPERTIES MANAGEMENT, INC.
By: /s/ Xxxxxx X. Petinella
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Xxxxxx Xxxxxxxxxx, Chief Executive Officer