AMENDMENT NO. ONE
TO
PURCHASE AND SALE AGREEMENT
WHEREAS, Home Properties of New York, L.P. ("Buyer") entered into
a Purchase and Sale Agreement, dated April 28, 1997 (the
"Agreement") with Erie Partners, L.L.C. ("Seller");
WHEREAS, Buyer and Seller wish to amend the Agreement to provide
that the transfer will be by assignment of all of the interests
in Erie Partner, L.L.C. rather than by Deed;
WHEREAS, Buyer and Seller also wish to amend the Agreement to
provide for an escrow in the amount of $75,000 to provide for pre-
closing liabilities of Erie Partners, L.L.C.; and
WHEREAS, Buyer and Seller wish to further amend the Agreement to
provide for the disposition of certain funds held in escrow by
the holder of the Existing Loan.
NOW THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used herein and not defined shall have
the meaning given them in the Agreement.
2. Buyer and Seller agree that in lieu of Seller conveying the
Property and the Other Items to Buyer by warranty deed and Xxxx
of Sale, the current, pre-closing members of the Seller (the "Pre-
Closing Members") will convey to the Buyer all of their interests
in the Seller, free and clear of all encumbrances. Any
references in the Agreement to the Seller after the Closing Date
shall therefore be a reference to the Pre-Closing Members of Erie
Partners, L.L.C.
3. The purchase price shall be Four Million Two Hundred and
Fifty Thousand and no/100 ($4,250,000). The reference to the
location of the Property in the first paragraph of the letter
shall be amended to the Town of Xxxxx rather than the Town of
Spencerport.
4. The Buyer has agreed to assume only those liabilities of
Erie Partners, L.L.C. and the Property as are specifically
described in the Agreement. The transaction is now being
structured as the assignment of the Pre-Closing Members'
interests in Erie Partners, L.L.C. to Buyer, which will then own
all of the interests in Erie Partners, L.L.C. The Buyer will
therefore have no entity to look to with respect to any
liabilities of Erie Partners, L.L.C. that Buyer has not agreed to
assume or with respect to the breach of any of the Seller's
representations or warranties contained in the Agreement. To
secure those
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obligations, the Seller will place $75,000 in escrow with the
Escrow Agent for four months following the Closing Date on the
terms set forth in the Escrow Agreement attached hereto as
Exhibit A.
5. The Buyer agrees that for a period of 5 years after the
Closing Date, the Buyer will permit the Pre-Closing Members to
have reasonable access to the books and records of the Property
and Erie Partners, L.L.C. relating to the period from the
formation of Erie Partners, L.L.C. to the Closing Date. In
addition, the Buyer agrees to maintain for a period of 5 years
after the Closing Date the books and records of the Property and
Erie Partners, L.L.C. relating to the same period. The
obligations of the Buyer relating to access and maintenance of
the books and records as described above shall only relate to
those books and records delivered to the Buyer at Closing. This
paragraph shall survive Closing.
6. Buyer and Seller agree that to the extent that the $36,090
currently held in escrow by ARCS Commercial Mortgage Co., L.P.
(the "Lender") pursuant to the Completion/Repair and Security
Agreement, dated December 16, 1996 has not been released at or
prior to Closing to pay for repairs made in compliance with that
Agreement, the funds shall remain in place until they are
released to pay for such repairs and Buyer shall not make any
payment to Seller or the Pre-Closing Members of Seller with
respect to such amount. To the extent that the amount of the
escrowed funds exceeds the funds necessary to complete the
repairs described in Completion/Repair and Security Agreement,
the Buyer agrees that it shall, upon completion of the repairs to
the Lender's satisfaction, pay the amount of any excess to Xxxxxx
X. Xxxxxx, as escrow agent for distribution to the Pre-Closing
Members.
7. As amended hereby, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the 28th day of May, 1997.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By: /s/ Xxx X. XxXxxxxxx
-------------------------
Title: Vice President
ERIE PARTNERS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Title: Manager
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ACKNOWLEDGED AND AGREED:
/s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx,
as agent for the Pre-Closing Members
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as
of the 28th day of April, 1997 by and between
HOME PROPERTIES OF NEW YORK, L.P., a New York limited
partnership, having its principal office at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, (herein called "Buyer"),
and
ERIE PARTNERS, L.L.C., a New York limited liability company,
having an office at 0 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx
00000 (herein called the "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the fee owner of a certain
residential apartment complex and adjacent land located in the
Town of Spencerport, County of Monroe, State of New York more
commonly known as Woodgate Place 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 Woodgate Place
Apartments which includes 120 apartments (the "Project"), located
in the Town of Spencerport 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 120 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, refrigerators, disposals and dishwashers (one of
each for each apartment unit, except that there are no
dishwashers in the one bedroom units),
C water heaters,
D to the extent owned by Seller 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
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tenants, mail boxes, office furniture, and related equipment 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 Xxxx of Sale in substantially
the form attached hereto as Exhibit B.
3. EXCEPTIONS. Buyer agrees to accept title to Seller's
interest in the Property subject only to the matters set forth on
the attached Schedule 1.
4. PRICE AND MANNER OF PAYMENT.
A. The purchase price for the Property shall be a total of
Four Million Nine Hundred Two Hundred and Fifty Thousand and
NO/100 ($4,250,000) (the "Purchase Price") payable as
follows (i) $25,000 payable as a deposit (the "Deposit")
upon execution of this Agreement by both parties; (ii) by
assumption of the first mortgage having a balance of
approximately $3,500,000 (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 Wien & Malkin, L.L.P. (the
"Escrow Agent"), who shall deposit that amount in an
interest bearing account to be held and disbursed in
accordance with the Rider attached hereto. 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 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,
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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. 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 Sellers 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 misrepresentions) 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, one-half of any assumption fees or other costs
charged by
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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, one-
half of 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 seller of similar
property.
7. SEARCH AND SURVEY. Seller has furnished to Buyer a copy of
the most recent survey and title insurance policy relating to the
Project.
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 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 Xxxx 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.
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.
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10. TITLE EXAMINATION; OBJECTIONS TO TITLE.
A Within ten (10) banking days after execution of the
Agreement by both parties 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.
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 a good and marketable title to the property described
above, subject to and in accordance with the provisions of
this contract, 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, in which event the sole
obligation of Seller shall be to refund the Deposit 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,; or
(2) proceed with the purchase, provided Seller is able to obtain
a commitment for title insurance and thereafter pay the premium
for said title insurance endorsement(s) which insure the
exception(s) on behalf of the Buyer.
(3) 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.
(4) 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.
Page 5
11. USE OF PROPERTY. Seller represents that 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.
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 that it employed Xxxxxxx Xxxxxx of Xxxxxxxx-Xxxxxx,
Realtors as broker and agrees that it will pay any fees or
commissions due as a result of the Seller's employment of 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 all or part of
Seller's interest in the Property 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.
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 120 apartment units in rentable
condition, 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,
Page 6
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 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, the Deposit shall be returned to Buyer,
at which time 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).
D Buyer shall take title to the Property subject to the terms
of the Existing Loan held by Federal National Mortgage
Association (the "Lender") on the Property, except that as
a condition of Buyer to close, Lender shall have approved
the assumption by Buyer of the Existing Loan and the
Existing Loan shall contain the following specific
requirements:
(i) the outstanding principal balance of the Existing Loan
at Closing shall be approximately Three Million Five
Hundred Thousand Dollars ($3,500,000.00);
(ii) the Existing Loan shall be current and no defaults
shall have occurred thereunder as of the Closing Date.
Seller shall provide Buyer with a copy of the documents
pertaining to the Existing Loan within 10 days of the
execution of this Agreement by both parties. Seller and
Buyer agree that they will work together in good faith to
obtain the Lender's approval of the assumption, it being the
parties intention that the Seller make the initial contacts
with the Lender with regard to the assumption.
E It shall also be a condition to Buyer's obligation to close
that during the Due Diligence Period, the Purchaser shall
obtain the approval of the Board of Directors (the "Board")
of its general partner - Home Properties of New York, Inc.,
- to the acquisition of the Property on the terms and
conditions described herein. If Buyer does not obtain the
Board's approval within the Due Diligence Period, the
Purchaser shall promptly notify Seller in which event the
Deposit shall be returned to Buyer, at which time this
Agreement shall be null and void and neither party shall
have any further rights or obligations under this
Agreement. Buyer's failure to notify Seller within the Due
Diligence Period of its failure to obtain Board approval
shall be deemed a waiver by Purchaser of the conditions
contained in this Section 8(E).
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, Seller shall promptly return the Deposit to
Buyer as provided in paragraph (B) of Section 4 of this
Agreement and the Rider attached hereto, at which time this
Agreement shall be null and void and neither party shall
have any further rights or obligations under this Agreement.
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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
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,
Page 8
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 There are no Service Contracts with respect to the Property
or the Other Items which will continue in effect after the
Closing except as set forth on Schedule "2" attached hereto.
I There are no executory contracts connected with the Property
or the Other Items, except as set forth on Schedule "3"
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.
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. The rent roll (as of 3/31/97)
attached hereto as Schedule "4" is true and correct as of
the date of shown thereon and indicates all apartment units
which are the subject of Section 8 contracts.
L The financial information previously provided to Buyer with
respect to the Property is substantially accurate.
M All of the ranges and refrigerators located within the
apartment units are the property of the Seller and not of
the tenants.
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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. To
the best of Seller's knowledge, there is not now and there
will not be as of the Closing, a default in the leases for
more than 2% of the apartment units. 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
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.
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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 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: ERIE PARTNERS, L.L.C.
0 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
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with a copy to: Wien & Malkin, LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Xx.
To Buyer: HOME PROPERTIES OF NEW YORK, L.P.
Attn: Xxxxxx Xxxxxxxxx, Chairman
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
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 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 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 conformity with Regulation S-X
of
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the Securities and Exchange Commission (the "Commission") and any
registration statement, report or disclosure statement required
to be filed with the Commission.
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/ Xxxxxx Xxxxxxxxx
--------------------------------
Title: Chairman
--------------------------------
ERIE PARTNERS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Title: Manager
--------------------------------
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