EXHIBIT 5.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as of
the 13th day of May, 1998 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, (the "Partnership");
and (SELLER), a ( ) (the "Seller"),
having its principal office at __________________________________.
W I T N E S S E T H:
WHEREAS, the Seller owns a certain apartment complex and
adjacent land located in the ______________________ in the State of
__________, all as more particularly described on EXHIBIT A;
WHEREAS, the Seller wishes to sell the Property to the
Partnership;
WHEREAS, Partnership desires to acquire the Property upon
the happening of certain events;
NOW, THEREFORE for and in consideration of the mutual
covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency whereof being hereby
acknowledged and intending to be legally bound hereby, the parties
agree as follows:
1. REAL PROPERTY DESCRIPTION. The Real Property to be
transferred by the Seller consists of an apartment complex commonly
known as _____________ Apartments, which includes ____ apartments
(the " Project"), located in __________, __________, on land more
particularly described on EXHIBIT A attached hereto, together and
including all buildings and other improvements thereon, including but
not limited to, the ____ apartment units, and all rights of Seller,
if any, 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 or at the Closing
(hereinafter defined) in or on the Property , which are the property
of the Seller (as distinguished from the property of a tenant) and
are located at or used in connection with the Property, are included
in this Agreement and shall become the property of the Partnership at
Closing:
A. all heating, air-conditioning, plumbing and lighting
fixtures,
B. ranges, refrigerators, dishwashers and disposals,
C. water heaters,
D. any and all pools and pool equipment, bathroom
fixtures, wall-to-wall carpeting, traverse rods, exhaust fans, hoods,
signs, screens, maintenance building, fences, carpeting and runners,
cabinets, mirrors, shelving, ceiling fans, mail boxes, office
furniture and equipment, including but not limited to computers,
clubhouse facilities, and any and all related equipment in connection
with the Property, and
E any fixtures appurtenant to the Property and any
other furniture or equipment used in connection with the operation
and maintenance of the Property, including but not limited to any
vehicles (hereinafter with the items listed in A-D above,
collectively, the "Other Items").
The Other Items will be acquired by the Partnership free and
clear of all liens and encumbrances.
3. CONSIDERATION AND MANNER OF PAYMENT; DEPOSIT.
A. The purchase price for the Property shall be
$__________ the "Purchase Price") which shall be payable by the
Partnership at Closing (as hereinafter defined) by official bank
check payable directly to Seller's order drawn on a New York
Clearinghouse Bank or, at Seller's option, by wire transfer to an
account designated by Seller.
B. Upon execution of this Agreement by both parties,
the Partnership shall deposit the sum of $1,000,000 (the "Initial
Deposit") by check with Orloff, Lowenbach, Xxxxxxxxx & Xxxxxx, P.A.
(the "Escrow Agent") as a deposit under this Agreement and under the
agreements relating to the Affiliated Properties (as hereinafter
defined). Upon expiration of the Due Diligence Period (as
hereinafter defined) and provided the Partnership has not exercised
its right to terminate this Agreement, the Partnership shall deposit
the sum of $1,000,000 (the "Additional Deposit") by check with the
Escrow Agent as an additional deposit under this Agreement and under
the agreements relating to the Affiliated Properties. The Initial
Deposit and the Additional Deposit, shall be hereinafter be referred
to as the "Deposit". The Deposit shall be held and disbursed as
provided in the Escrow Agreement attached hereto as EXHIBIT B. The
Deposit shall be returned to the Partnership: (I) in the event the
Partnership consummates the transaction contemplated hereby; (ii)
upon termination of this Agreement by the Partnership as expressly
permitted hereunder;(iii) upon Seller's default, including but not
limited to a failure of a condition described in Section 16 of this
Agreement caused by the Seller. In the event the Partnership
defaults on its obligations hereunder, including but not limited to a
failure of a condition described in Section 16 of this Agreement
caused by the Partnership, the Deposit shall be paid to the Seller
as liquidated damages and not as penalty. The Partnership and the
Seller each acknowledges that the Deposit is a fair and reasonable
measure of the Seller's damages in the event of the Partnership's
default. The Partnership and Seller each waives any right to claim
that the Deposit is not a fair and reasonable measure of damages in
the event the Partnership defaults. In consideration for such
waivers, the Partnership and the Seller each agrees not to institute
any legal proceedings to challenge the Deposit as a fair and
reasonable measure of such damages. If, despite the agreement in the
previous sentence, either party institutes such litigation, the
instituting party shall pay the costs and expenses of the other party
in such litigation, including reasonable attorneys' fees, regardless
of the outcome thereof. Any and all sums deposited hereunder shall
be applied or refunded as provided herein. (All references to
"Deposit" shall be deemed to include all accrued interest thereon).
4. ADJUSTMENTS AT CLOSING. The following shall be
adjusted and prorated between the Seller and the Partnership at
Closing as if the Partnership was the owner of the Property as of the
Closing Date:
A. All ad valorem real estate taxes with respect to
the Property for the calendar year or other applicable tax period in
which the Closing is consummated. If the amount of such taxes is not
known at Closing, proration of such taxes will be made upon the basis
of the previous year's or other most recent applicable tax period
taxes. In such event, the Seller and Partnership agree to re-
prorate/adjust the taxes between themselves after the Closing, based
upon the full amount of the actual taxes for the Property when the
amount of the actual taxes is known.
B. water charges.
C. sewer charges.
D. fuel, electricity and other utilities.
E. All tenant security deposits (and interest thereon
if required by law or contract to be earned thereon) (the "Security
Deposits") shall be transferred or credited to Partnership at
Closing. At Closing, Partnership shall assume Seller's obligations
related to Security Deposits to the extent they are properly credited
and transferred to Partnership. Partnership agrees that it will
indemnify, defend, hold Seller harmless and will indemnify Seller
against all demands, claims, losses, costs, damages, expenses or
liabilities, including, but not limited to, attorneys' fees, arising
out of or in connection with the transfer or disposition of such
Security Deposits.
F. charges under the service contracts assumed by
Partnership (the "Service Contracts").
G. laundry income.
H. any other charges incurred with respect to the
Property which the Partnership or the Sellers are obligated to pay.
I. salaries and benefits of employees employed by the
Seller at the Property and remaining in the employment of the
Partnership after Closing.
J. Rents.
(1) All rent payments collected as of the Closing
Date for the month of Closing shall be prorated as between the
parties as of the Closing Date. Any other rent collected by the
Seller prior to the Closing for rental periods subsequent to Closing
shall be paid to the Partnership at Closing.
(2) All rent collected after Closing for any
period prior to Closing shall belong to Seller and, if paid to
Partnership, Partnership shall promptly send such rent to the Seller.
All rent collected after Closing shall be applied first to current
rent payments due and owing and then to pay any arrearages (in
inverse order/most recent arrearages paid first). Seller shall have
the right to pursue payment of rent due for any period prior to the
Closing, including by means of legal action against tenants or former
tenants, provided that after the Closing, the Seller shall have no
right to terminate leases or cause the eviction of tenants.
(3) All rent collected by Partnership or the
Seller for rental periods after the Closing shall belong to
Partnership and, if paid to the Seller, the Seller shall promptly
send such rent to Partnership.
Any error in the calculation of adjustments shall be
corrected subsequent to Closing with appropriate credits to be given
based upon corrected adjustments.
5. COSTS. Partnership shall pay all recording fees,
Partnership's attorneys' fees, the costs of obtaining any survey,
title commitment and title policy and all other costs and expenses
incidental to or in connection with closing this transaction
customarily paid for by the transferee of similar property. The
Seller shall pay Seller's attorneys' fees, any applicable transfer
and recordation taxes and all other costs and expenses incidental to
or in connection with closing this transaction customarily paid for
by the transferor of similar property.
6. EVIDENCE OF TITLE. Seller has furnished to the
Partnership a copy of the most recent title policy relating to the
Property along with the most recent instrument survey of the Property
in Seller's possession.
7. CLOSING DOCUMENTS.
A. At the time of Closing, the Seller shall deliver
to Partnership the following.
(1) A bargain and sale deed with covenants against
grantor's acts in the form provided for under the laws of the state
where the Property is located (the "Deed"). Such Deed shall convey
the Property to Partnership subject to: (i) all leases identified in
the Rent Roll (hereinafter defined); (ii) ad valorem real estate
taxes and the lien of municipal utility charges for the current year
and subsequent years which are not yet due and payable; and (iii)
easements, covenants, restrictions, agreements and/or reservations of
record, so long as they do not interfere in any material respect with
the use of the Property as a rental apartment complex; (iv) private,
public and utility easements and roads and highways, so long as they
do not interfere in any material respect with the use of the Property
as a rental apartment complex; and (v) and any other exceptions not
objected to or waived by Partnership under Section 9B (collectively
items (i) - (v) the "Permitted Exceptions").
(2) A Xxxx of Sale in the form attached hereto as
EXHIBIT C.
(3) A current rent roll ("Rent Roll") certified,
as of the date of Closing, which shall include a correct list of all
tenants, all rental obligations of each tenant with respect to the
Property and all security deposits along with a copy of all leases
with such tenants which are in the possession of Seller and which
have not been delivered to the Partnership prior to Closing.
(4) An Assignment of Leases, Security Deposits and
Service Contracts in the form attached hereto as EXHIBIT D (the
"Assignment") along with a copy of all contracts so assigned. In
lieu of an assignment of the security deposits, the Seller may
provide Partnership with a credit at Closing for all security held by
Seller (including any accrued interest, if required by law or
contract to be earned thereon) with respect to all leases encumbering
the Property.
(5) A certificate of title and any other
documentation necessary to transfer title to any vehicles.
(6) Seller's affidavit stating Seller's federal
taxpayer identification number and certifying that Seller is not a
foreign person, corporation, partnership, trust or estate as defined
in the Internal Revenue Code and Regulations thereunder pursuant to
the Foreign Investment in Real Property Tax Act of 1980.
(7) Copies of the personnel files of all employees
employed at the Property and remaining in the employment of the
Partnership after the Closing.
(8) A termination of any management agreements
relating to the Property.
(9) A Closing Statement detailing the adjustments
made at Closing.
(10) Any additional funds, documents and or
instruments as may be necessary for the proper performance by the
Seller of its obligations contemplated by this Agreement.
B. At the time of Closing, Partnership shall
deliver to Seller the following.
(1) The Assignment.
(2) Evidence of organization, existence and
authority of Partnership and the authority of each person executing
documents on behalf of Partnership each, reasonably satisfactory to
Seller.
(3) The Purchase Price and such cash as may be
required of Partnership to pay closing costs or charges properly
allocable to Partnership.
(4) A Closing Statement detailing the adjustments
made at Closing.
(5) Any additional funds, documents and or
instruments as may be necessary for the proper performance by
Partnership of its obligations contemplated by this Agreement.
8. INSPECTION. For a period of fourteen (14) calendar
days after the date of this Agreement (the "Due Diligence Period"),
the Seller agrees that the Partnership and its authorized
representatives shall have the right and privilege to enter upon the
Property and the 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 Partnership may deem appropriate and necessary,
including but not limited to a review of 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
markets in which the Property operates, any service or other
contracts relating to the Property, the tax assessment on the
Property and on comparable properties and such other matters as
Partnership shall deem reasonably necessary or appropriate in
connection with the Property and the Other Items. All such
inspections, studies, tests and reviews shall be at Partnership's
sole expense. The Partnership agrees to provide the Seller with a
copy of all Phase I and other environmental reports received by the
Partnership in the course of its investigation. Seller agrees to
cooperate with Partnership by making available to Partnership such
records, plans, drawings or other data as may be in Seller's
possession or control relating to the Property and its operation. In
addition, promptly upon execution of this Agreement by all of the
parties, the Partnership will order a commitment (the "Title
Commitment") for an ALTA owner's policy from a nationally recognized
title insurer (the "Title Company"). Partnership hereby agrees to
indemnify, defend and hold Seller, Seller's tenants, agents,
employees, partners, trustees, officers and the Property harmless
from and against all claims, losses, costs, damages, expenses or
liabilities, including, but not limited to, mechanic's and
materialmen's liens and attorneys' fees arising out of or in
connection with Partnership's access to or entry upon the Property.
If any inspection or test disturbs the Property, Partnership will
restore the Property, at Partnership's own cost and expense, to the
same condition as existed prior to any inspection or test. The
Partnership agrees that its rights under this Section 8 shall be
subject to the rights of the residents at the Property and that it
will use its reasonable efforts to minimize any disruption to those
residents. Partnership shall have the right to terminate this
Agreement if it determines that it does not wish to purchase the
Property as a result of its findings during the Due Diligence Period
and notifies the Seller in writing of such decision within the Due
Diligence Period (the "Termination Notice"). In such event, this
Agreement shall terminate and neither party shall have any further
claims, rights, liabilities or obligations under or with respect to
this Agreement, except Partnership shall have the right to the return
of its Deposit and the obligations set forth in Section 8, 12 and 26
herein shall survive any such termination. Partnership's failure to
deliver the Termination Notice within the Due Diligence Period shall
be deemed to be a waiver by Partnership of its right to terminate
this Agreement as provided in this Section 8.
9. TITLE; TITLE EXAMINATION; OBJECTIONS TO TITLE.
A. Seller shall convey to the Partnership
good and marketable title to the Property by Deed, subject only to
the Permitted Exceptions. Title to all Other Items purchased herein,
if any, shall be conveyed to Partnership by xxxx of sale, free and
clear of all security interests, liens and encumbrances, but subject
to any Permitted Exceptions.
B. Within ten (10) business days after
Partnership's receipt of the Title Commitment Partnership shall
deliver to Seller a statement of defects, encumbrances or objections
to title or survey matters (a "Statement of Title Defects"). If
Partnership fails to deliver a Statement of Title Defects within such
time period as aforesaid or by June 6, 1998, whichever is earlier,
such failure shall be deemed to be a waiver of any such defects,
encumbrances or objections to title and Seller shall convey title in
accordance with this Agreement. Upon receipt of Partnership's
Statement of Title Defects, Seller shall have five (5) business days
to determine whether it wishes to attempt to cure any matters shown
on such statement. If Seller is unable or unwilling to cure or
attempt to cure any such matters, Seller shall give notice to
Partnership within such five (5) day period, but if no such notice is
given, Seller shall be deemed to be unwilling to cure any such
defects. If Seller does not agree to attempt such cure, Partnership
shall have ten (10) days after the expiration of the foregoing five
(5) business day period to terminate this Agreement, in which case it
shall have the right to the return of the Deposit, or to give Seller
notice that it has elected to take title to the Property subject to
the defects of title without abatement of the Purchase Price. If no
notice is given by the Partnership within the ten (10) day period,
the Partnership shall be deemed to have terminated this Agreement.
10. CLOSING DATE. Unless this Agreement is terminated as
provided herein, the Closing shall occur on or before June 23, 1998
(the "Closing" or "Closing Date") at the office of the Seller's
attorneys. Notwithstanding the above, the Partnership shall have the
right to extend the Closing and the Closing Date to and including
July 31, 1998 provided that the Partnership provides the Seller with
written notice of the extension on or before June 23, 1998.
11. POSSESSION. Partnership shall have possession and
occupancy of the Property from and after the date of delivery of the
Deed subject only to the Permitted Exceptions and such matters as
shall have been waived by the Partnership and to the rights of
tenants shown on the Rent Roll delivered to Partnership at Closing
pursuant to Section 7A (3).
12. BROKER'S COMMISSION. The Seller and Partnership each
represent to the other that there are no fees or commissions due as
a result of their employment of any Broker. The Seller and
Partnership 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 broker by
the indemnifying party. This representation and indemnity shall
survive the Closing.
13. RISK OF LOSS. If prior to the Closing the Property or
any portion thereof is destroyed or damaged or if the Property or
any material portion thereof shall is subjected to a BONA FIDE threat
of condemnation or becomes the subject of any proceedings, judicial,
administrative or otherwise, with respect to the taking by eminent
domain or condemnation, Seller shall notify Partnership thereof
within a reasonable time after receipt of actual notice thereof by
Seller, but in any event prior to Closing. In such event this
Agreement shall remain in full force and effect with no adjustment of
the Purchase Price and upon the Closing, Seller shall assign,
transfer and set over to Partnership all of the right, title and
interest of Seller in and to any awards that have been or that may
thereafter be made for such taking, and Seller shall assign, transfer
and set over to Partnership any insurance proceeds that may have been
or that may thereafter be made for such damage or destruction giving
Partnership a credit at Closing for any deductible under such
policies. In such event, Seller shall have no additional obligation
if such insurance proceeds or condemnation awards are insufficient to
repair such damage. Seller hereby agrees that it shall keep all
insurance policies presently existing which relate to the Property in
effect through the Closing Date.
14. CONDITIONS PRECEDENT TO PARTNERSHIP'S OBLIGATION TO
CLOSE. It shall be a condition to the Partnership's obligation to
close that:
A. The Partnership has not exercised its right to
terminate this Agreement as provided in Section 8;
B. There shall be at Closing ____ apartment units in
which are all in compliance in all material respects with federal,
state, county and local laws, ordinances, rules and regulations;
C. During the Due Diligence Period, the Partnership
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; and
D. On the Closing Date the Title Company is prepared
to issue a title policy insuring the Partnership's fee interest in
the Property subject only to the Permitted Exceptions.
It is understood that the contingencies set forth in this
Section 14 are for Partnership's benefit and may be waived by
Partnership at any time. If the above contingencies are not
satisfied or waived by the Partnership, the Partnership shall have
the right to terminate this Agreement by written notice to the
Seller. In the event of such a termination, neither party shall have
any further claims, rights, liabilities or obligations under or with
respect to this Agreement, except Partnership shall have the right to
the return of its Deposit and the obligations set forth in Sections
8,12 and 26 herein shall survive any such termination.
15. CONSENT ORDERS. Seller is party to a Consent Order
(the "Consent Order") in the Matter of United States of America x.
Xxxxxxxx Associates, et al., Civil Action No. 97-3114(AMW), entered
by the United District Court for the District New Jersey. A copy of
the Consent Order has been furnished to Buyer. Seller has also
agreed to the form of a Supplemental Consent Order in the same matter
which will be entered prior to Closing, a copy of which has also been
furnished to Buyer. Buyer agrees that from and after the Closing,
until the expiration of the Consent Orders on June 30, 2000, Buyer
shall perform all of the obligations under the Consent Orders to be
performed by the Defendants named therein. Seller warrants and
represents to Buyer that all the obligations under the Consent Orders
to be performed by the Defendants named therein have been fully
performed to date; and shall continue to be fully performed up to and
including the Closing Date. Buyer agrees to indemnify and hold
harmless Seller and the Defendants named in the Consent Orders from
and on account of any and all liability, costs and expenses,
including reasonable attorneys fees, arising out of Buyer's failure
to perform its obligations under this Section 15. Seller agrees to
indemnify and hold harmless Buyer from an account of any and all
liability, costs and expenses, including reasonable attorneys' fees,
arising out of Seller's breach of the warranty and representation
regarding performance on or prior to the Closing Date of the
Defendants' obligations under the Consent Orders contained in this
Section 15.
16. CONDITIONS TO THE PARTIES' OBLIGATIONS TO CLOSE. In
addition to all other conditions set forth herein, the obligation of
Seller, on the one hand, and Partnership, on the other hand, to
consummate the transactions contemplated hereunder shall be
contingent upon the following:
A. As of the Closing Date, the other party shall have
performed its material obligations hereunder and all deliveries to be
made at Closing have been tendered and the representations and
warranties of the other party shall be true and correct;
B. There shall exist no pending or threatened actions,
suits, arbitrations, claims, attachments, proceedings, assignments
for the benefit of creditors, insolvency, bankruptcy, reorganization
or other proceedings, against the other party that would materially
and adversely affect the other party's ability to perform its
obligations under this Agreement; and
C. There shall exist no pending or threatened action,
suit or proceeding with respect to the other party before or by any
court or administrative agency which seeks to restrain or prohibit,
or to obtain damages or a discovery order with respect to, this
Agreement or the consummation of the transactions contemplated
hereby.
D. On the Closing Date, the Partnership shall acquire
all of the properties described on the attached Schedule 1 (the
"Affiliated Properties"); provided, however, that if the only reason
a Closing for one or more of the Affiliated Properties (a "Deferred
Property") cannot occur on the Closing Date is the failure to obtain
the certificate of occupancy or similar approval referred to in
Paragraph O of Section 17, the other Closings will take place on the
Closing Date, and the Closing for each Deferred Property will take
place one week after the certificate of occupancy or similar approval
for such Deferred Property is obtained.
17. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller
makes the following representations and warranties to Partnership as
of the date hereof and as of Closing:
A. To the best of Seller's knowledge, 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, including the Schedules hereto.
B. To the best of Seller's knowledge, 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 Items or any
part or the operation thereof, not fully covered by insurance
(except for applicable deductibles) or any proceeding to which Seller
is a party 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, Seller has
complied in all material respects with and is not in default in any
material respects under, or in violation in any material respects of,
or received any notice that the Seller, the Property or the Other
Items may be in violation in any material respect 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, 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. [INTENTIONALLY OMITTED]
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 attached hereto as
SCHEDULE "3" 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. [INTENTIONALLY OMITTED]
M. 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.
N. 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.
O. 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, and except for a resale certificate of occupancy or similar
approvals. Seller agrees to apply for such approval promptly after
execution of this Agreement. At Closing, the Partnership will
reimburse Seller for the costs of such application and the reasonable
costs of any repairs or alterations required to be made to the
Property in order to obtain such approval.
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 17 and elsewhere in this Agreement is material
to the Partnership hereunder. As to any representation or warranty
set forth herein, Seller shall indemnify, defend and hold the
Partnership safe 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 assessed against the Partnership, 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 material breach of any warranty or obligation under this
Agreement or if any representation of Seller in this Agreement is
wholly or partially untrue in any material respect. Notwithstanding
the above, Seller shall have no liability for any untrue or incorrect
representation or warranty of Seller unless and until the aggregate
amount of Partnership's monetary damages arising out of all such
breaches shall exceed Fifty Thousand Dollars ($50,000), and Seller
shall be liable only for the excess over Fifty Thousand Dollars
($50,000).
Irrespective of anything to the contrary contained herein,
the representations and warranties of Seller shall expire and be of
no further effect upon the expiration of 6 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.
For purposes of this Agreement, "to Seller's knowledge", "to
the knowledge of Seller", "to the best knowledge of Seller" (or words
of similar meaning) shall mean to the actual knowledge of Xxxxxx X.
Xxxxxx, and the knowledge of no other person shall be attributed to
or be deemed the knowledge of Seller.
18. REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP.
Partnership represents and warrants to the Seller as of the date
hereof and as of the Closing:
A. Partnership 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. To the best of its knowledge, there is no
litigation, proceeding or investigation pending, or to the knowledge
of Partnership threatened, against or affecting Partnership or the
partners of Partnership 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 Partnership.
C. 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 the
Partnership, enforceable in accordance with its terms, except as may
be limited by bankruptcy and other laws affecting creditors' rights
generally.
D. The Partnership has the financial ability to
perform its obligations to purchase the Property as provided in this
Agreement.
The representations and warranties of the Partnership
contained in this Agreement, the statements in any Exhibit or
Schedules attached to this Agreement, or other instruments furnished
to Seller at or prior to Closing pursuant to this Agreement, or in
connection with the transactions contemplated pursuant to this
Agreement, do not contain any untrue statements or 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 of the assignment of the Deed and shall merge
therein.
The Partnership acknowledges that each of the
representations made by it in this paragraph 18 and elsewhere in this
Agreement is material to the Seller hereunder. As to any
representation or warranty set forth herein, the Partnership shall
indemnify, defend and hold the Seller safe 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 the Seller,
directly or indirectly, whether foreseen or unforeseen, and whether
for personal injury or death or for property damage or otherwise by
reason of the Partnership's material breach of any warranty or
obligation under this Agreement or if any representation of the
Partnership in this Agreement is wholly or partially untrue in any
material respect. Notwithstanding the above, Partnership shall have
no liability for any untrue or incorrect representation or warranty
of Partnership unless and until the aggregate amount of Seller's
monetary damages arising out of all such breaches shall exceed Fifty
Thousand Dollars ($50,000), and the Partnership shall be liable only
for the excess over Fifty Thousand Dollars ($50,000).
Irrespective of anything to the contrary contained herein
the representations and warranties of the Partnership shall expire
and be of no further effect upon the expiration of 6 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 the Partnership.
19. ENVIRONMENTAL CERTIFICATION. By acceptance of this
Agreement, Seller represents, warrants, and certifies to the
Partnership that Seller has no knowledge of any violation, and has
received no notice of any violation of any applicable Environmental
Laws (below defined) with respect to the Property and the current use
of the Property. To the best of Seller's knowledge, Seller has not,
used, generated, stored, dumped, released, buried, dispersed or
emitted any Hazardous Substance on the Property, except for Hazardous
Substances stored and disposed of in the ordinary course of operating
the Property, all of which were stored, used and disposed of in
accordance with all applicable laws. There are no underground tanks
on the Property except as set forth on Schedule 4. "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.), 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 the Partnership 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 the Partnership
of any new information or other developments which could tend to
supplement or modify the information contained herein in any material
respects. If there is any lead paint and/or asbestos found at the
Property, then the Partnership agrees that the Seller shall have no
obligation to the Partnership to remediate the lead paint and/or
asbestos and if the Partnership does not exercise its right to
terminate this Agreement as provided in Section 8 hereof and acquires
the Property, then the Partnership shall assume any obligation to
remediate the lead paint and/or asbestos.
20. ASSIGNMENT. This Agreement, and all or any portion of
the rights of Partnership hereunder, may not be assigned by
Partnership without the prior written consent of the Seller, which
may be granted or withheld in its sole discretion. Notwithstanding
the above, the Partnership may assign its rights under this Agreement
to an entity in which the Partnership holds no less than 98% of the
equity interests without the Seller's consent. No such assignment
shall relieve the Partnership of any of its obligations under this
Agreement.
21. NOTICE. All notices given pursuant to any provisions
of this Agreement shall be in writing and shall be effective upon
receipt and then only if delivered personally, or sent by registered
or certified mail, postage prepaid or sent by a national over-night
carrier, or by telecopy with confirmation of receipt to the addresses
set forth below:
To the Seller:
Copy to: Xxxxx X. Xxxxxxxxx, Esq.
Orloff, Lowenbach, Xxxxxxxxx & Xxxxxx, P.A.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
-and-
Xxxxxxx X. Xxxxxx, Esq.
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx, P.A.
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
To Partnership: HOME PROPERTIES OF NEW YORK, L.P.
Attn: Xxxxxx Xxxxxxxxx, Chairman
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
22. PLANS. The Seller agrees to provide Partnership 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 the
Seller further agree that they will endeavor to turn over the same to
Partnership at the Property during the Due Diligence Period.
23. APPLICABLE LAW. This Agreement shall be construed and
governed in accordance with the laws of the State where the Property
is located.
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 Partnership and the Seller.
26. CONFIDENTIALITY. By execution of this Agreement and
except as otherwise provided herein, prior to the Closing, or if the
Closing does not occur, the Seller and Partnership 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, unless such
disclosure is required by law or judicial process. The Partnership
may disclose the existence of this Agreement to the extent necessary
to conduct its due diligence with respect to the Property or as may
be required or appropriate under applicable securities laws including
but not limited to as may be necessary or appropriate to raise
equity. If the Closing does not occur, each of the parties agrees to
return to the other party any confidential information pertaining to
the Property or the other party that it has received from the other
party.
27. FINANCIAL INFORMATION. Prior to and after the Closing,
the 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 in substantially the form attached hereto as Exhibit E.
The representation is required to enable an Independent Public
Accountant to render an opinion on such financial statements. Seller
will provide access by the Partnership's representatives, to all
financial and other information relating to the Property as is
sufficient to enable them to prepare audited financial statements, at
the Partnership's expense, in 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. RECORDATION. Neither Party may record this Purchase and
Sale Agreement; and any recordation shall render the contract void at
the option of the non-recording party. Also, neither party may file
a lis pendens against the Property.
29. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall be deemed
to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same
instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected thereon as the
signatories.
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. (SELLER)
By: Home Properties of New York, Inc.
General Partner
By: /s/ Xxxxxx Xxxxxxxxx By:
Title: Chairman Title:
LIST OF EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Escrow Agreement
EXHIBIT C Xxxx of Sale
EXHIBIT D Assignment
EXHIBIT E Form of Representation Letter
LIST OF SCHEDULES
Schedule 1 List of Affiliated Properties
Schedule 2 Service Contracts
Schedule 3 Rent Roll
Schedule 4 USTs
PORTFOLIO INFORMATION
NAME AND LOCATION # OF PRICE SELLING ENTITY
UNITS
Cherry Hill Club 164 $4,536,000 The Kaplen
Apartments, Foundation
Inkster, MI
Mill Co. Gardens, 96 $2,037,000 The Kaplen
So. Portland, ME Foundation
Beechwood Gardens, 160 $3,900,000 Beechwood Gardens
Philadelphia, PA
Xxxxx Xxxx 150 $4,500,000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxx Xxxx, XX
So. Portland 500 $15,927,000 South Portland
Assoc., Associates
So. Portland, ME
Xxxxxx Xxxxxxx, 000 $5,550,000 The Kaplen
Columbus, OH Foundation
Lakeview 106 $5,174,000 The Kaplen
Apartments, Foundation
Leonia, NJ
Mountainside 227 $8,414,000 The Kaplen
Apartments, Foundation
Garnerville, NY
Oak Manor 77 $4,717,000 The Kaplen
Apartments, Foundation
Ridgewood, NJ
Xxxxxxxx 100 $4,782,000 The Kaplen
Apartments, Foundation
Peekskill, NY
Xxxxx Village, 275 $14,783,000 The Kaplen
Wayne, NJ Foundation
East Hill Gardens, 33 $1,787,000 East Hill Gardens
Tenafly, NJ
Windsor Realty, 67 $3,693,000 Windsor Realty
Woodridge, NJ Co.
Xxxxxx Gardens, 256 $7,065,000 Xxxxxx Gardens
Plainfield, NJ
Pleasantview 1,142 $53,371,000 Piscataway
Apartments, Associates
Piscataway, NJ
Pleasure Bay 270 $7,813,000 Pleasure Bay
Apartments, Long Apartments
Branch, NJ
The Towers, 137 $6,751,000 The Towers
Pasaic, NJ Apartments
Office and $200,000
Equipment
TOTAL UNITS/PRICE 4002 $155,000,000
