PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as of the 24th day
of July, 2000 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
XXXXXX XXXXXX, having an office at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000 (herein called the "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the fee owner of certain residential apartment
complexes and adjacent land located in the Towns of Patchogue and East
Patchogue, State of New York, 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:
I.REAL PROPERTY DESCRIPTION. The Real Property to be conveyed consists of the
parcels of land known as Bayview Apartments (96 units), Colonial
Apartments (64 units), East Winds Apartments (96 units), Maple Avenue
Apartments (84 units), Rider Avenue Apartments (24 units) and Xxxxx
Apartments (65 units) more particularly described on Exhibits "A-F",
attached hereto, together and including all buildings and other
improvements thereon, including but not limited to, the 429 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").
II.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.heating, plumbing and lighting fixtures,
B.ranges, refrigerators and dishwashers (except as otherwise indicated in
tenant leases),
C water heaters,
D any and all bathroom fixtures, wall-to-wall carpeting, exhaust fans,
hoods, signs, screens, maintenance building, fences, carpeting,
cabinets, mirrors, shelving, any humidifier and dehumidifier units,
air conditioning units other than such units owned by tenants, mail
boxes, office furniture, and related equipment, if any, in
connection with the Property,
E any fixtures appurtenant to the Property and any other furniture or
equipment, including two vehicles (1982 and 1988 Ford pick-up
trucks), used in connection with the operation and maintenance of
the Property (hereinafter with the items listed in A-D above,
collectively, the "Other Items").
III.EXCEPTIONS. Buyer agrees to accept title to the Property subject only to
the following:
A. Restrictive covenants of record common to the tract or subdivision,
provided same have not been violated, unless said violations have
been released under Section 2001 of the Real Property Actions and
Proceedings Law.
B. Water line, sanitary sewer, drainage, gas line and main, electrical,
telephone easements and other easements of record provided that, no
building or other improvements, including project signage, are
located over the area covered by such easement or are adversely
affected.
C. The mortgages and other documents as listed on the attached
"Schedule 4".
IV.PRICE AND MANNER OF PAYMENT.
A. The purchase price for the Property shall be a total of Twenty Six
Million Five Hundred Thousand and NO/100 ($26,500,000) (the
"Purchase Price") payable as follows: (i) by payment of $100,000 as
a deposit ("Deposit") upon execution of the agreement by both
parties; (ii) by credit against the Purchase Price equal to the
unpaid principal balances of the Existing Loans (as hereinafter
defined) assumed by Buyer as of the Closing (but not including any
Disapproved Loans (as hereinafter defined) which Seller pays off at
Closing); and (iii) the remainder payable at Closing by certified or
bank check or by wire transfer to an account designated by Seller,
at Seller's option.
B. The Deposit shall be paid to Xxx X. Xxxxxx, Esq. (the "Escrow
Agent"), who shall deposit that amount in an interest bearing
account. The term "Deposit" shall include all interest earned
thereon. The Deposit (with interest) shall be paid to Buyer by
separate check from Escrow Agent upon delivery of a W-9 by Buyer.
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.fuel and gas,
D.electricity,
E.all rentals and security deposits (including interest thereon) pursuant
to the leases,
F.charges under the Service Contracts (hereinafter defined),
G.laundry income,
H interest on the Existing Loans,
I insurance and tax escrows and other escrows with respect to the
Existing Loans, if any,
J any other charges incurred with respect to the Property which Seller
is obligated to pay, and
K Rents.
1. All rent payments collected for the month of Closing shall be
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.
Any error in the calculation of adjustments shall be corrected subsequent
to Closing with appropriate credits to be given based upon corrected
adjustments, provided, however, that the adjustments (except if errors are
caused by misrepresentations) shall be final upon expiration of one year
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, legal fees charged by the
Existing Lenders in connection with the assumption of the Existing Loans
and the costs of any appraisals, surveys or environmental reports required
by Existing Lenders in connection with the assumption of the Existing
Loans (collectively, Buyer's Loan Costs") 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, all expenses associated with the assumption of the
Existing Loans, including but not limited to any assumption fees charged
by the Existing Lenders (hereinafter defined), and all other costs and
expenses incidental to or in connection with closing this transaction
customarily paid for by the seller of similar property, but excluding any
of Buyer's Loan Costs. At Closing, Seller shall reimburse Buyer for any
and all application fees charged by Existing Lenders.
7. REPORTS AND SURVEY. The Seller shall deliver to Buyer within five (5)
days after the date of this Agreement a copy of the most recent
environmental reports, title policies in his possession and instrument
survey(s) pertaining to the Property.
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, including reasonable legal fees awarded by a court and agrees
further to restore to its original condition, at Buyer's own cost and
expense, any property disturbed by such entry. Buyer agrees to provide
Seller with a copy of any reports issued by third parties as a result of
any such inspections, studies, tests or reviews.
9. TITLE DOCUMENTS. At the time of Closing, Seller shall deliver to Buyer
the following with respect to each of the five apartment complexes that
comprise the Property:
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
(with interest).
D. Complete originals of each lease (or lost lease affidavit) listed on
the Rent Roll, together with an assignment of all leases encumbering
the Property to Buyer.
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.
G Certificates of title and any other documentation necessary to
transfer title to the vehicles described in Section 2, free of all
encumbrances.
10. TITLE EXAMINATION; OBJECTIONS TO TITLE.
A Within twenty (20) days after the date of this Agreement, 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) days from receipt of notice, if any, from
Buyer of its title objections within which it must notify Buyer in
writing if it can cure.
C In the absence of such notice from Seller, Seller shall not be
obligated to cure the title objections, if any, made by Buyer. If
Seller is unable to convey good and marketable title to the
property described above, subject to and in accordance with the
provisions of this contract, or is not able or unwilling to obtain a
commitment for title insurance and thereafter pay the premium for
said title insurance to insure the exception(s) on behalf of the
Buyer then 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 after the end of the notice period
specified in subparagraph B above if Buyer has not received the
notice of cure from Seller in which event this Agreement shall
wholly cease and terminate, and neither party shall have any
further claim against the other by reason of this Agreement
except Buyer shall have the right to the return of the Deposit;
or
2. Notwithstanding anything to the contrary contained herein, Buyer
may accept such title as Seller may be able to convey, without
reduction of the Purchase Price or any credit or allowance
against the same and without any other liability on the part of
Seller. 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.
D. If a search of the title discloses judgments, bankruptcies or other
returns against other persons having names the same as or similar to
that of Seller, Seller will on request deliver to Buyer an affidavit
showing that such judgments, bankruptcies or other returns are not
against Seller.
11. USE OF PROPERTY. Seller represents that 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 multi residential dwellings.
12. CLOSING DATE. Provided that neither party has exercised its right to
terminate this Agreement as provided herein, the Closing shall occur on
November 1, 2000 (as hereinafter defined) (the "Closing" or "Closing
Date") at the offices of the Seller or the Seller's counsel or at such
other time and in such other manner 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 to Buyer that
it did not employ any broker in connection with this sale except for
Select Investment Realty Advisors. Seller and Buyer shall be responsible
for the payment of fees and commissions to that broker pursuant to a
separate written agreement. 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 the Property
by fire or other casualty or by taking by eminent domain, until Closing,
shall be assumed by the Seller. If prior to the Closing the Property or
any portion thereof is destroyed or damaged in excess of $500,000, or if
the Property or any portion thereof 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 Buyer thereof within a reasonable
time after receipt of actual notice thereof by Seller, but in any event
prior to Closing, and, at its option, Buyer may, within 5 days after
receipt of such notice, elect to cancel this Agreement in which event this
Agreement shall terminate and the Deposit (with interest) shall be
returned to Buyer. If the Closing Date is within the aforesaid 5-day
period, then Closing shall be extended to the next business day following
the end of said 5-day period. If no such election is made, and in any
event if the destruction or damage is not in excess of $500,000 this
Agreement shall remain in full force and effect and the sale contemplated
herein, less any interest taken by eminent domain or condemnation, shall
be effected with no further adjustment, and upon the Closing of this sale,
Seller shall assign, transfer and set over to Buyer 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 Buyer any insurance proceeds that may have been or that
may thereafter be made for such damage or destruction giving Buyer a
credit at Closing for any deductible under such policies. Seller hereby
agrees that it shall keep all insurance policies presently existing which
relate to the Property in effect through the Closing Date.
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 429 apartment units in rentable condition (painted,
cleaned and with carpets cleaned, but excepting any apartment units
vacated within 5 days prior to the Closing Date), which are all in
compliance with federal, state, county or local laws, ordinances,
rules and regulations;
C It shall be a condition to Buyer's obligation to close that on or
before the Closing Date, all of the furnaces at Bayview Apartments
and Colonial Apartments shall have been replaced.
D 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 environmental studies), the Seller's
books and records pertaining to the Property
and the Other Items, matters relating to zoning compliance and
compliance by the Property and the Other Items with other applicable
governmental regulations, the market in which the Property operates,
the 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. At Buyer's
option, the Due Diligence Period may be a period of less than thirty
(30) days. If Buyer determines that it does not wish to purchase
the Property and the Other Items as a result of its findings during
the Due Diligence Period and notifies Seller of such decision within
the Due Diligence Period, this Agreement shall be null and void and
neither party shall have any further rights or obligations under
this Agreement. Buyer's failure to object within the Due Diligence
Period shall be deemed a waiver by Buyer of the condition contained
in this Section 8(C).
E Any management agreement pertaining to the Property shall be
terminated on or prior to the Closing Date.
F It shall be a condition to Buyer's obligation to close that on or
before the Closing Date, all repairs required by the Existing
Lenders as set forth in the Repair Escrow Agreements referenced in
Schedule 4 attached hereto shall have been completed, and Seller
shall provide a letter or other written acknowledgement wherein the
Existing Lender shall have approved such repairs as satisfying the
requirements of the Repair Escrow Agreements and shall have approved
the refunding of the repair escrows to Seller.
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
given at or prior to the end of the Due Diligence Period except for the
contingencies sets forth in subsections A, B, C, E and F, for which notice
must be given prior to Closing. In the event of such a termination, this
Agreement shall be null and void and neither party shall have any further
rights or obligations under this Agreement, except that Buyer shall have
the right to the return of the Deposit.
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, except for three (3) underground
storage tanks at Colonial Apartments, two (2) underground storage tanks at
Bayview Apartments and one (1) underground storage tank at Xxxxx
Apartments, 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, except "slip and fall" and similar
litigation which is fully covered by insurance and which shall
remain Seller's responsibility after Closing, or any proceeding
pending for the increase or decrease of the
assessed valuation of all or a portion of the Property.
C To the best of Seller's knowledge after due inquiry, Seller has
complied with and is not in default under, or in violation of,
or received any notice that the Seller, the Property or the Other
Items may be in violation of, any law, ordinance, rule,
regulation or code or condition in any approval or permit pursuant
thereto (including without limitation, any zoning, sign,
environmental, labor, safety, healthor 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, except as reflected on the rent roll.
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 "1" attached hereto.
I There are no executory contracts connected with the Property or the
Other Items, except as set forth on SCHEDULE "2" 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, shall operate, maintain and repair
at Seller's expense, all landscaping, buildings, fixtures and
facilities, in accordance with normally accepted business
principles, and 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 The financial information previously provided to Buyer with respect
to the Property is substantially accurate.
M Except as indicated in the tenant leases, all of the ranges and
refrigerators located within the apartment units are the property of
the Seller and not of the tenants.
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 Except the Disapproved Loans (as defined below), 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 mortgage, indenture, contract,
agreement, instrument, franchise, permit, judgment, decree, order,
statute, rule or regulation applicable to Seller or the Property.
P Seller has completed any and all repairs required by the Existing
Lender as set forth in the Repair Escrow Agreements referenced in
Schedule 4 attached hereto and the relevant Existing Lender has
approved such repairs.
Q 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 transactionscontemplated 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.
R Seller shall permit Buyer to examine and copy all of the leases
encumbering the Property, including all additions, amendments or
modifications thereto as provided herein. Seller shall not
accept any prepayment in excess of one month
of any rent due under any leases with respect to the
Property.
S The documents listed on "SCHEDULE 4" constitute all of the material
agreements associated with the Existing Loans except for usual loan
documents executed at Closing.
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.
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 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 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.
The representations, warranties and indemnities contained herein
shall not survive delivery and recording of the deed, but shall be merged
therein.
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) 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 not be
assigned by Buyer without Seller's prior consent, except Seller does agree
that, upon no less than five (5) days prior written notice, it will at the
Closing deliver the deed and other title documents to Buyer's assignee or
designee. 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: Xx. Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to: Xxx X. Xxxxxx, Esq.
Xxx Xxx Xxxxxxx Xxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
To Buyer: HOME PROPERTIES OF NEW YORK, L.P.
Attn: Xxxxxx Xxxxxxxxx, Chairman
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
22. WARRANTIES AND GUARANTIES. Seller shall assign to Buyer at Closing any
and all guaranties and warranties Seller has with respect to the new
furnaces referenced in paragraph C of Section 16 of this Agreement.
23. APPLICABLE LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of New York.
24. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement
between the parties, and any and all prior understandings or agreements,
whether written or oral, are hereby merged into this Agreement. This
Agreement cannot be modified except by a written instrument signed by
the parties hereto.
25. BINDING AGREEMENT. This Agreement shall not be binding or effective until
properly executed by Buyer and Seller.
26. CONFIDENTIALITY. By execution of this Agreement and except as otherwise
provided herein, prior to the Closing each of Seller and Buyer agree to
keep any and all information with respect to the transactions
contemplated by this Agreement strictly confidential, and will not
disclose any such information, without the other's prior written consent.
Buyer may disclose the existence of this Agreement to the extent necessary
to conduct its due diligence with respect to the Property.
27. FINANCIAL ACCESS. Seller will provide a signed representation letter in
substantially the form attached hereto as Exhibit G 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 the Securities
and Exchange Commission (the "Commission") and any registration
statement, report or disclosure statement required to be filed with the
Commission.
28. LENDER APPROVAL. It shall be a condition to each party's obligation to
close that, prior to the Closing Date, the holders (collectively, the
"Existing Lenders" and each an "Existing Lender") of the loans set forth
on the attached Schedule "4" (collectively, the "Existing Loans" and
individually an "Existing Loan") shall have approved the assumption of
their respective Existing Loan by the Buyer and the release of the Seller
from all obligations thereunder (the "Assumption"). Buyer shall apply for
approval of each of the Existing Lenders within ten days after Buyer's
receipt of: (a) a fully executed Agreement; and (b) a letter by Seller to
each Existing Lender authorizing the Existing Lender to review the
Assumption requests. If any Existing Lender fails to approve the
Assumption at or prior to the Closing Date, then either party will have
the right to terminate this Agreement upon written notice to the other
given prior to the Closing Date. In such event, this Agreement shall be
null and void and neither party shall have any further rights or
obligations under this Agreement, except that Buyer shall have the right
to the return of the Deposit. Notwithstanding the foregoing, in the event
any Existing Lender fails to approve the Assumption ("Disapproved Loan"),
Seller shall have the right to pay off and discharge the Disapproved
Loans, in which event Buyer shall not have the right to terminate this
Agreement, this Agreement shall continue in full force and effect and
Seller shall pay off the Disapproved Loans at Closing. Buyer and Seller
agree to work together in good faith to obtain the approval of the
Assumption by the Existing Lender.
29. TAX DEFERRED EXCHANGE. Seller has advised Buyer of its intention to seek
to effect a tax deferred exchange pursuant to Section 1031 of the Internal
Revenue Code, in connection with the conveyance of the Property (or any
one or several of them). If Seller is able to negotiate terms acceptable
to Seller for the acquisition of an exchange property or properties, then
Buyer agrees to accommodate Seller in seeking to effect a tax deferred
exchange for that property or properties. Seller shall have the right,
expressly reserved here, to transfer the Property in exchange for such
exchange property or exchange properties so identified by Seller so that
Seller shall become the owner of the exchange property or properties and
the owner of the exchange property or properties shall become the owner of
the Property subject to all obligations of Seller hereunder. The owner of
the exchange property then shall complete this Contract. In the
alternative, Buyer agrees to cooperate with Seller with respect to such
exchange and agrees to execute all documentation required to effectuate
such exchange. Buyer makes no warranty whatsoever with respect to the
qualification of the transaction for tax deferred exchange treatment under
Section 1031 and Buyer shall have no responsibility, obligation or
liability with respect to the tax consequences to Seller.
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:
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Title:
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Xxxxxx Xxxxxx
