PURCHASE AGREEMENT
AGREEMENT made this 30th day of April, 1997, between HOME
PROPERTIES OF NEW YORK, L.P., 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
("Seller") and XXXXXX WEDGEWOOD ASSOCIATES, L.P., 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Purchaser").
W I T N E S S E T H:
1. SALE AND PURCHASE PRICE OF PROPERTY. In accordance with and
subject to the terms and conditions of this Agreement, Seller hereby agrees
to sell to Purchaser and Purchaser agrees to purchase from Seller all
Seller's right, title and interest in and to the premises situate in the
City of Columbus and State of Ohio, comprised of 604 apartment units and
related improvements and commonly known as Wedgewood Apartments (the
"Property").
The sale shall include:
(a) The equipment, fixtures, furnishings, inventory
supplies and other personal property located on the Property and relating
to the operation of the buildings.
(b) All of Seller's right under any warranty and service
contracts relating to the Property and equipment, fixtures, furnishings and
other personal property thereon.
(c) All right, title and interest of Seller, if any, in and
to:
(i) Strips or gores of land adjoining or abutting the
Property, if any, and
(ii) Any land lying in the bed of any streets, road,
avenue, or alley, opened or proposed, in front of,
running through or adjoining the Property.
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2. PURCHASE PRICE OF PROPERTY. The purchase price of the
Property shall be the sum of $8,296,100 payable by wire transfer at
closing. Traditional adjustments for real estate taxes and rents shall be
made at closing.
3. CONTINGENCY. This agreement is contingent upon Purchaser
obtaining acceptable financing through the HUD 221(d)(4) Program. In the
event such contingencies are not satisfied within 120 days of the execution
of this Agreement by both parties. This Agreement shall terminate and
neither party shall have any further rights of obligations as to the other.
Purchaser may waive the contingency and close at any time. Purchaser will
use best efforts to obtain the financing referenced above and take all of
the pre-development steps necessary to close the sale described herein.
4. CLOSING DEED. The closing of the sale and purchase of the
Property will take place on or before June 30, 1997, at the office of
Seller. Seller will deliver the deed to Purchaser or Purchaser's designee
or designees against payment of the purchase price. The deed shall be a
bargain and sale deed with covenant against grantors' acts and shall be
duly executed by Seller and in proper form for recording. It shall be
prepared at Seller's expense and shall convey to Purchaser good and
marketable fee simple title to the Property, free and clear of all liens,
except for liens for payment of past due real estate taxes about which
Purchaser has received notice. The Deed shall contain a lien clause in
compliance with Section 13 of the Lien Law.
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5. EVIDENCE OF TITLE. Seller shall furnish Purchaser with all
tax searches and abstracts of title. Other searches and surveys with
respect to the Property and in Seller's possession within ten (10) days of
full execution of this Agreement.
6. RISK OF LOSS. Risk of loss or damage to the Property until
transfer of title shall be assumed by the Seller. If any substantial
damage to the Property occurs prior to transfer, the Purchaser shall have
the options of either: (i) accepting the Property in its then condition,
obtaining the assignment of any claims for insurance and paying the full
purchase price; or (ii) declaring this contract null and void without any
other liability of Seller.
7. WARRANTIES AND REPRESENTATIONS. Seller warrants and
represents to the Purchaser as follows:
(a) Litigation - There are no suits, actions, proceedings,
or other litigation or known investigations of or against the Seller or the
Property, threatened or pending, which would affect title to the Property
or which would affect or delay consummation of the transaction set forth in
this Agreement.
(b) Liabilities - There are no outstanding liabilities or
obligations of Seller of any nature, whether direct or indirect, absolute,
contingent, accrued or otherwise, which would affect title to the Property
or which would delay consummation of the transactions set forth in this
Agreement. Seller agrees to notify Purchaser if any orders, laws,
regulations, restrictions or rulings affecting Property up to the time of
closing. The representations and warranties contained in this Paragraph 7
and elsewhere in this Agreement shall not survive delivery and recording of
the deed and shall merge therein, except Seller shall remain liable for
damages caused by
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any breach of warranty or representation which arises out of an intentional
material misrepresentation made by Seller.
8. RECORDS AND FILES. At the time of closing, Seller will
deliver to Purchaser all records and files pertaining to the Property.
9. OBJECTION TO TITLE TO PROPERTY. In the event that prior to
or at the closing, conditions are disclosed which render Seller incapable
of delivering title to the Property of the character and nature above
described and such conditions constitute a matter subject to which
Purchaser is not obliged under the provisions of this Agreement to take
title, then Seller shall have a reasonable time after receipt of written
notice thereof within which to remove any obligations to title raised by
Purchaser, and Purchaser shall be entitled to a _____ adjournment for that
purpose or may waive such objection and take such title as Seller can
convey. If Seller cannot deliver title as required hereunder, Purchaser's
sole right or remedy shall be to terminate this Agreement or waive such
objection as described above.
10. PURCHASER'S RIGHT TO GO ON TO THE PROPERTY. Purchaser and
Purchaser's designee or designees, at any reasonable time prior to the
transfer of title, may enter upon the Property to make building surveys,
soils and architectural and engineering analysis, and to do such other acts
as may be desired with respect to the Property at the sole expense of
Purchaser, but only acts that do not substantially change the character and
nature of the Property. Purchaser agrees to hold Seller harmless from and
indemnified against any and all claims for personal injury or property
damage arising out of actions of Purchaser or its designees due to such
entry upon the Property.
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11. TESTING. Purchaser shall have the right to examine the
books and records relating to the operation of the Property and to perform
engineering and architectural studies for the purpose of determining
whether or not the Property can be used for its intended purpose.
Purchaser shall have the right to enter upon the Property from and after
the execution of this Agreement by both parties for the sole purpose of
conducting such studies. In the event such examination or such studies
establish that the Property cannot be used as intended by Purchaser, in
Purchaser's reasonable judgment, Purchaser shall have the right to
terminate this Contract. Purchaser agrees to indemnify and hold the Seller
harmless from any and all liability arising from its entry upon the
Property and the performance of such studies.
Purchaser shall have the right to obtain a written environmental
status report by an engineering firm acceptable to the Purchaser relating
to the Property. Upon receipt of such report, Purchaser agrees to deliver
a copy of such status report, and all analytical results upon which it is
based to Seller and furthermore, Purchaser agrees to maintain the
confidentiality of such status report unless otherwise required by law. If
such report establishes that the Property is not free from the release,
threatened release, storage or disposal of any hazardous waste, toxic
substance, or any other regulated substance, then Purchaser may either
waive the condition of this Paragraph or terminate this Contract by giving
written notice of such termination to Seller within thirty (30) days of the
date hereof. Seller hereby warrants and represents to Purchaser that
Seller has delivered to Purchaser a copy of an environmental audit report
that relates to the Property. Seller makes no other environmental
representations.
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12. BROKER'S COMMISSIONS. Purchaser represents to Seller that
it has not dealt with any broker in connection with the negotiations
leading to this Agreement. Seller shall be responsible for all real estate
commissions.
13. NOTICES. Any notice, demand or request required or agreed
to be given hereunder by either party shall be sufficiently given or
served, if in writing, signed by the party giving it, and mailed by
certified mail, or sent by nationally recognized overnight carrier,
addressed to the party for whom it is intended as follows:
Seller: HOME PROPERTIES OF NEW YORK, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
or such other address as Seller may from time to
time designate by notice
Purchaser: XXXXXX WEDGEWOOD ASSOCIATES, L.P.
c/o HOME PROPERTIES OF NEW YORK, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxx X. XxXxxxxxx
or such other address as Purchaser may from time to time designate by
notice. Service shall be complete upon such mailing or sending, except in
case of a notice to change in address in which case service shall be
completed when the notice is received by the addressee.
14. CONDITION OF PROPERTY. Purchaser represents that is has
fully investigated the Property and that subject to its rights set forth in
paragraph 9 and 11 hereof. Purchaser agrees to purchase the Property in
its current "AS IS" condition,
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subject to deterioration and wear and tear through and until closing.
15. MISCELLANEOUS. This Agreement constitutes the entire
agreement between the parties relating to the transaction herein set forth
and shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto, their successors and assigns. This Agreement may not
be amended or terminated except by instrument in writing signed by both
parties. This Agreement shall be governed by the laws of the State of New
York.
PURCHASER:
XXXXXX WEDGEWOOD ASSOCIATES, L.P.
By: Home Properties of New York, L.P.
General Partner
By: Home Properties of New York, Inc.
General Partner
SELLER:
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By: /s/ Xxx X. XxXxxxxxx
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Xxx X. XxXxxxxxx
Vice President
