PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as of this 25th day of
July, 1997, by and between HOME PROPERTIES OF NEW YORK, L.P., a New York
limited partnership, having its principal office at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter sometimes called "Buyer") and XXXXX
X. AND XXXXX X. XXXX FOUNDATION, having an office at 0000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Seller").
WITNESSETH:
WHEREAS, Seller is the owner in fee simple of a certain residential
apartment complex located in the City of Rochester, State of New York more
commonly known as 0000 Xxxx Xxxxxx Apartments all as more particularly
described below;
WHEREAS, Seller desires to sell said property to Buyer, and Buyer
desires to purchase said property from Seller, upon the happening of
certain events;
NOW THEREFORE, in consideration of the property, mutual covenants
herein contained, and for other good and valuable consideration, the
receipt and sufficiency whereof being hereby acknowledged, the parties
hereby agree as follows:
1. REAL PROPERTY DESCRIPTION: The real property to be conveyed
consists of that certain property known as 0000 Xxxx Xxxxxx Apartments with
a street address of 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, Xxxxxx of Monroe
and State of New York and more particularly described on "Exhibit A"
annexed hereto and made a part hereof, together with and including all
buildings and other improvements thereon, including but not limited to, 164
apartments located in an 11 story building, and all rights of Seller in and
to any and all streets, roads, highways, alleys, driveways, easements and
rights-of-way appurtenant thereto (collectively, the "Property").
2. OTHER ITEMS: The following items, if any, now in or on the
Property, are included in this sale and shall become the property of Buyer
at Closing (as hereafter defined): all heating, plumbing and lighting
fixtures, all bathroom fixtures, wall-to-wall carpeting, exhaust fans,
hoods, signs, screens, tool sheds, fences, carpeting and runners, cabinets,
mirrors, shelving, any humidifier and dehumidifier units, mailboxes, and
any fixtures and equipment appurtenant to and used in connection with the
operation of the Property other than property owned by the residents of the
Property (hereinafter collectively the "Other Items").
3. EXCEPTIONS: Buyer agrees to accept title to the Property subject
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 and telephone easements of record provided that no building or
other improvements are located
over the area covered by such easement or adversely affected.
c. ad valorem taxes not yet due and payable;
d. zoning and other laws and government regulations of general
application;
e. matters shown on the survey provided pursuant to paragraph 7
hereof, provided that same do not impair the marketability of the Premises;
and
f. any leases affecting the Property entered into by 0000 Xxxx
Xxxxxx Associates as landlord as well as the Lease Agreement, dated
November 24, 1987 by and between 0000 Xxxx Xxxxxx Associates and Xxxxx X.
Xxxx, as subsequently modified (the "Lease Agreement"). The Seller
represents that it shall pay to 0000 Xxxx Xxxxxx Associates the sum due to
it pursuant to Section 28.4 of the Lease Agreement, which shall be one-half
of the net sale proceeds (after deduction of the expenses of sale as
described in Section 28.4 of the Lease Agreement) in excess of $7.5
million.
4. STRUCTURE OF PURCHASE AND SALE.
a. Seller agrees that, immediately prior to the Closing, it will
cause the Property to be conveyed to a partnership or to a limited
liability company, at Buyer's option, to be created under the laws of the
State of New York ("New Entity"). Buyer shall pay all legal and filing
expenses relating to the formation of the New Entity and shall make the
arrangements for its formation. The documents relating to the formation of
the New Entity shall be subject to the Seller s approval, which shall not
be unreasonably withheld or delayed. Furthermore, Buyer agrees that it
will indemnify Seller against any and all claims or expenses suffered or
incurred by Buyer as a result of its membership in the New Entity. The
parties hereto agree that the term Seller as used herein shall include the
New Entity, but that, in all events, the Xxxxx X. Xxxx and Xxxxx X.
Foundation shall remain responsible for the Seller's obligations hereunder.
b. Buyer agrees that it will, in lieu of accepting a Deed for the
Property, acquire all of the interests in New Entity, without recourse to
the Seller (the "Interests").
5. PRICE, MANNER OF PAYMENT.
a. In consideration for the conveyance of all of the Interests in
the New Entity to the Buyer, Buyer agrees to pay to Seller in the manner
hereinafter provided, the sum of Nine Million Five Hundred Thousand and
00/100 Dollars ($9,500,000.00) (the "Purchase Price"). The Purchase Price
shall be payable on the Closing Date (as hereinafter defined) by certified
check, or at Seller's option, by wire transfer of immediately available
funds.
6. ADJUSTMENTS AT CLOSING. The only adjustment to be made at
Closing shall be with respect to rent pursuant to the Lease Agreement,
which shall be pro-rated between the parties as if the Buyer was the owner
of the Property as of midnight of the night preceding the Closing Date.
7. SEARCH AND SURVEY; EXPENSES. Seller shall furnish and deliver to
the attorney for Buyer as quickly as practicable following execution of
this Agreement by
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the parties fully guaranteed tax, title and United States
District Court searches and searches under Uniform Commercial Code of
records in the appropriate offices, dated or redated subsequent hereto.
Seller shall also promptly provide Buyer with an instrument survey dated
or redated subsequent hereto certified to such persons and organizations as
may be designated by Buyer, made by a land surveyor duly licensed by the
State of New York, showing the boundaries of the land conveyed hereunder,
all improvements thereon and the location of all easements, rights-of-way
or similar encroachments affecting same, prepared and certified in
accordance with the code of practice adopted by the New York State
Association of Professional Land Surveyors. Seller shall pay for the
continuation of said tax, title, United States District Court, local tax
and Uniform Commercial Code searches to and including the date of Closing
and for any required transfer tax in connection with the transfer.
8. TITLE DOCUMENTS. At the time of Closing, Seller shall tender to
Buyer an assignment of all of the Interests in the New Entity as well as an
assignment of the Lease Agreement, both free and clear from all liens and
encumbrances and both without recourse to the Seller. In addition, Seller
shall transfer to Buyer the security deposit held by Seller with respect to
the Lease in the amount of $350,000 plus all interest accrued thereon and
not paid to the lessee under the Lease as described in Lease Modification
No. 1, dated as of July 1, 1991.
9. POSSESSION. Buyer shall have possession and occupancy of the
Property from and after the date of delivery of the assignment of the
Interests in the New Entity subject only to the matters herein otherwise
provided for.
10. TITLE EXAMINATION; OBJECTIONS TO TITLE.
a. Buyer agrees, within fifteen (15) days after Buyer receives the
title materials described in paragraph 7 above, 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. 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. If Seller shall be unable to convey good and marketable title to
the Property described above, subject to and in accordance with the
provisions of this contract, then, except as hereinafter provided, Buyer
may elect, by written notice to Seller to either:
(i) terminate this Agreement by notice, in the manner
hereinafter provided, delivered to 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, and the lien, if
any, of the Buyer against the Property shall wholly
cease; or
(ii) proceed with the purchase provided Seller, solely at
Seller's discretion, elects and is able to obtain a
commitment for title insurance and thereafter pays the
premium for said insurance which insures the interest
of the Buyer.
c. Notwithstanding anything to the contrary contained herein, Buyer
may accept
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such title as Seller may be able to convey, without reduction of
the consideration hereunder or any credit or allowance against the same and
without any other liability on the part of Seller and if Buyer elects to do
so, Seller shall have no right to terminate this Agreement as hereinabove
provided.
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. CLOSING DATE. The Closing shall occur within 15 days after the
satisfaction or waiver of the contingency set forth in paragraph 24 (the
"Closing" or "Closing Date") at the offices of the Buyer, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxx, xx at such other time and place that Buyer and
Seller agree upon.
12. BROKER'S COMMISSION. The parties hereto agree that no broker
brought about this sale; and that each agrees to indemnify the other for
any and all claims and expenses, including reasonable legal fees, if any
commission is determined to be due because of a misrepresentation by such
party. The foregoing indemnification shall survive the Closing.
13. RISK OF LOSS. The risk of loss or damage to the Property by fire
or other casualty, or by taking by eminent domain, until Closing, shall be
assumed by Seller, and upon the happening of such event, Buyer shall have
the election of terminating this Agreement without further liability
thereunder, or of completing this purchase, paying to Seller the full
consideration provided hereunder without adjustment or reduction therein in
accordance with this Agreement, and receiving the insurance monies,
collectible for such loss or damage, or the award for such taking by
eminent domain; provided, however, that if such taking or such damage or
destruction shall occur with respect to only an insignificant part of the
Property, Buyer shall have no right to terminate this Agreement and shall
proceed with the purchase of the portion of the Property then remaining. If
Buyer shall proceed with the purchase of the portion of the Property then
remaining following such taking, damage or destruction in accordance with
this paragraph 13, Buyer shall nevertheless pay to Seller the full
consideration provided hereunder without adjustment or reduction therein in
accordance with this Agreement; but Seller shall, at the Closing, in
addition to its other obligations set forth herein, pay to Buyer all
condemnation, insurance or other awards received by or for the benefit of
Seller as a result of such taking, damage or destruction prior to the
Closing and assign to Buyer all such awards not yet received thereby. For
the purposes hereof, a part of the Property shall be insignificant if the
fair market value of the affected portion of the Property shall not exceed
One Hundred Thousand and 00/100 Dollars ($100,000) in the aggregate.
14. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer as of the date hereof and as of Closing:
a. 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.
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b. 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 change (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.
c. 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.
15. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as of the date hereof and as of the Closing:
a. Buyer is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of New York and has all
the requisite power and authority to 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. Compliance by Home Properties with this Agreement and the
consummation of the transactions contemplated hereby do not conflict with,
or result in the breach of, or constitute a default under the partnership
agreement or other document pursuant to which Buyer is organized or any
contract, agreement, indenture or undertaking to which Buyer is a party or
by which it is bound.
d. The partners of 0000 Xxxx Xxxxxx Associates are unchanged since
its formation, except that the limited partner changed its name from
Xxxxxxxxx Investments to Xxxxxxxxx Ventures.
16. CONDITION OF THE PROPERTY. Buyer has previously inspected the
Property and the Other Items and shall purchase the Property and the Other
Items solely in reliance upon the previous inspection thereof. Except as
otherwise provided herein, there have been and shall be no other
representations and warranties made by Seller, express or implied with
respect to the physical condition of the Property and the Other Items or
the compliance of the Property with applicable laws, ordinances,
regulations, codes, licenses and permits. Buyer shall purchase the
Property "AS IS" without any warranty as to the condition of all or any
part thereof or as to fitness for any particular purpose or use.
17. NOTICE. All notices given pursuant to any provisions of this
Agreement shall be in writing, shall be effective only if delivered
personally, sent by registered or certified mail, postage prepaid, or sent
by a nationally recognized overnight delivery service to the
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addresses set
forth below and shall be deemed given when received as established by
written proof of receipt or upon proof that receipt was actively declined:
To Seller: Xxxxx X. Xxxx Foundation
0000 Xxxx Xxxxxx
Xxxxxxxxx 000
Xxxxxxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxxx
Xxxxx, Oviatt, Gilman, Xxxxxxx & Xxxxxx, LLP
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
To Buyer: Home Properties of New York, L.P.
Attn: Xxx X. Xxxx, Executive Vice President
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
With a copy to: Xxx X. XxXxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
18. GUARANTEES. Seller shall assign to Buyer at Closing any and all
guarantees and warranties it has with respect to the Property, the
improvements thereon and the equipment relating to the Property, if any,
and Buyer shall assume the duties and obligations of Seller with respect
thereto.
19. CONFIDENTIALITY. By execution of this Agreement and except as
otherwise provided herein, Seller agrees 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 Buyer's
prior written consent.
20. USE OF APARTMENT. Provided that the apartments and parking space
may be used only for the purposes of the Xxxxx X. and Xxxxx X. Xxxx
Foundation and no other purposes Seller shall continue to have the use of
Apartments 701 and 702 and one parking space until the last day of the
month in which the first anniversary of the Closing occurs free of charge,
but subject to the rules and regulations applicable to the residents of the
Property.
21. APPLICABLE LAW. This Agreement shall be construed and governed
in accordance with the laws of the State of New York.
22. 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.
23. BINDING AGREEMENT. This Agreement shall not be binding or
effective until properly executed by Buyer and by Seller at which time this
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective heirs, personal
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representatives, successors and assigns.
24. SELLER'S CONTINGENCY. The Seller s obligation to complete the
transactions herein shall be contingent upon the receipt by the Seller of
an update of the appraisal of the Property (subject to the Lease Agreement)
previously commissioned by the Seller, which update shall show a value of
the Property (subject to the Lease Agreement) not in excess of $9,500,000.
In the event that the appraisal shows a value in excess of $9,500,000,
Seller may terminate this Agreement upon written notice to the Buyer, such
notice to be given on or before August 4, 1997. Failure to provide such a
notice of termination on or before August 4, 1997 shall be deemed to be a
waiver of the contingency set forth in this paragraph 24. Seller agrees
that it will in good faith promptly order the update of the appraisal and
arrange for its completion in a timely basis.
25. INTERPRETATION. As used in this Agreement:
a. Any gender shall include any other gender; the conjunctive
shall include the disjunctive and the disjunctive shall include the
conjunctive, wherever appropriate; and the plural shall include the
singular and the singular shall include the plural, wherever appropriate.
b. The titles of the sections herein have been inserted as a
matter of convenience of reference only and shall not control or affect the
meaning or construction of any of the terms and provisions hereof.
c. Whenever in this Agreement reference is made to "this
Agreement" or to any provision "hereof" or "hereunder" or words to similar
effect, such reference shall be construed to refer to the within instrument
and the attached exhibits and schedules as an integral part thereof, unless
the context clearly requires otherwise.
26. COUNTERPARTS. The parties hereto may execute this Agreement in
any number of counterparts, each of which, when executed and delivered,
shall have the force and effect of an original; but all such counterparts
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to
be executed as of the day and date first written above.
XXXXX X. AND XXXXX X. XXXX FOUNDATION
Dated: August 8, 1997
By: /s/ Xxxx Xxxxxxxx
________________________________
Title: Chairman of the Board
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
Dated: July 25, 1997 /S/ Xxx X. Xxxx
_____________________________________
Xxx X. Xxxx
Executive Vice President
ACKNOWLEDGED AND AGREED
0000 XXXX XXXXXX ASSOCIATES
By: Home Leasing Corporation
Dated: June 25, 1997 /s/ Xxx X. Xxxx
_____________________________________
Xxx X. Xxxx
Executive Vice President
