Exhibit 2.7
CONTRIBUTION AGREEMENT
This Contribution Agreement ("Agreement"), made as of the 2nd day of March,
1997 by and among
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")
PARK SHIRLINGTON LIMITED PARTNERSHIP, a Virginia limited partnership (the
"Contributor"), having its principal office at 00000 Xxxx Xxxxx, Xxxxx
Xxxxxxxx, Xxxxxxxx 00000; and
TOWER CONSTRUCTION GROUP, LLC, a Maryland limited liability company
("Tower"), having its principal office at 00000 Xxxx Xxxxx, Xxxxx Xxxxxxxx,
Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Contributor owns a certain apartment complex and adjacent land
located in the State of Virginia, all as more particularly described on Exhibit
A;
WHEREAS, the Contributor wishes to contribute its interest in the Property
in exchange for limited partnership interests in the Partnership;
WHEREAS, Partnership desires to acquire the Property upon the happening of
certain events;
WHEREAS, Tower has the right to manage the Property and earn fees therefor
pursuant to that certain Management Agreement, dated on or about the dates first
written above, by and between the Contributor and Tower (the "Management
Agreement");
WHEREAS, Tower wishes to contribute its interests in the Management
Agreement in exchange for limited partnership interests in the Partnership and
the Partnership wishes to acquire Tower's interest in the Management Agreement
in order to effect a termination of the Management Agreement;
WHEREAS, the parties hereto also desire, subject to the terms and
conditions set forth herein and in the agreement noted below, that Xxxxxxxx Xxx
Limited Partnership ("Xxxxxxxx Xxx") contributes to the Partnership and the
Partnership shall accept from Xxxxxxxx Xxx, the real property described in
Schedule 1 attached hereto (the "Xxxxxxxx Xxx Property"), pursuant to a
contribution agreement entered into between Xxxxxxxx Xxx, Tower and the
Partnership of even date herewith (the "Xxxxxxxx Xxx Contribution Agreement"),
and that the transactions contemplated therein close simultaneously with, and as
a condition to, the closing of the transactions contemplated hereby;
NOW, THEREFORE, in consideration, 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:
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1. REAL PROPERTY DESCRIPTION. The Real Property to be contributed by the
Contributor consists of an apartment complex commonly known as Park
Shirlington Apartments, which includes 293 apartments and one apartment
converted for use as an office (the " Project"), located in Arlington,
Virginia, 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 293 apartment units and one apartment
converted for use as an office, and all rights 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 and owned by the Contributor, are included
in this Agreement and shall become the property of Partnership at Closing
(as hereafter defined):
A all heating, air-conditioning, plumbing and lighting fixtures,
B ranges, refrigerators and disposals (one of each for each apartment
unit),
C water heaters,
D any and all pools and pool equipment, bathroom fixtures, exhaust fans,
hoods, signs, screens, maintenance building, fences, cabinets,
mirrors, shelving, mail boxes, office furniture and equipment,
including but not limited to computers, 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 a 1995 Ford pickup truck, VIN 0XXXX00XXXXX00000
used in connection with the operation and maintenance of the Property,
but excluding a condenser pump not belonging to the Contributor
(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.
A In consideration for the contribution of the Property by the
Contributor to the Partnership, subject to the terms and conditions
herein, the Partnership agrees to issue to the Contributor or to the
partners of the Contributor as designated in writing by the
Contributor (collectively, the "Designees" and individually, a
"Designee") limited partnership interests in the Partnership
(collectively, the "Units" and each one of the Units, a "Unit") having
a value, determined as described in paragraph C below, of Thirteen
Million Four Hundred Thirty-Four Thousand Five Hundred and Sixty-Three
and no/100 Dollars ($13,434,563) (the "Contributor's Contribution
Value"). Notwithstanding the above, the Contributor may only designate
individuals or entities to be Designees who have established to the
reasonable satisfaction of the Partnership that they are accredited
investors under applicable securities laws.
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B In consideration for the contribution of the Management Agreement by
Tower to the Partnership, subject to the terms and conditions herein,
the Partnership agrees to issue Units having a value, determined as
described in paragraph C below, of Seven Hundred Seven Thousand
Eighty-Two and no/100 Dollars ($707,082) ("Tower's Contribution
Value"). Notwithstanding anything to the contrary herein, the
Partnership shall be required to issue the Units to Tower and Tower
shall be obligated to contribute the Management Agreement to the
Partnership only if and when the Closing occurs with respect to the
contribution of the Property by the Contributor to the Partnership.
C The total number of Units to be issued to the Contributor, the
Designees and Tower will be equal to the Contributor's Contribution
Value and Tower's Contribution Value, respectively, divided by the
"Market Value" of a Unit. The Market Value of a Unit shall be equal to
the average closing price for 20 consecutive trading days prior to,
but not including, the Closing Date of a share of common stock of Home
Properties of New York, Inc., ("HME") as listed on the New York Stock
Exchange. Notwithstanding the above, the Market Value shall not exceed
$30 per Unit.
D The initial distribution payable with respect to Units issued
hereunder shall be made on the date on which HME pays the dividend to
the holders of its common stock that relates to the earnings for the
calendar quarter in which the Units were issued and shall be pro-rated
such that the Contributor, Designees and Tower shall receive a
pro-rata distribution for the period from the date on which the Units
were issued to and including the last day of the calendar quarter in
which the Units were issued.
E Upon the expiration of the Due Diligence Period and provided
Partnership has not exercised its right to terminate this Agreement,
Partnership shall deposit the sum of Two Hundred Seventy Thousand
Dollars ($270,000.00) with Tri-State Commercial Settlements, Inc. (the
"Title Company") as a good faith deposit hereunder (the "Deposit").
The Deposit shall be deposited in an FDIC or FSLIC institution and
shall be held and disbursed as provided in the Escrow Agreement
attached hereto as Exhibit B. The Deposit, along with accrued interest
shall be refunded to the Partnership at Closing in the event
Partnership consummates the transaction contemplated hereby, upon
termination of this Agreement by Partnership expressly permitted
hereunder, or upon Contributor's default. In the event Partnership
fails to acquire the Property other than by reason of a termination by
Partnership expressly permitted hereunder or Contributor's default,
the Deposit shall, at Contributor's election, be forfeited to the
Contributor as liquidated damages. 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 Contributor and the Partnership at Closing as if the
Partnership was the owner of the Property as of the Closing Date. All such
adjustments and pro-rations between Contributor and Partnership shall be
settled in cash and shall not increase or decrease the Contributor's
Contribution Value, as the case may be.
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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 Contributor 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.e full amount of the actual taxes for the Property when
the amount of the actual taxes is known.taxes is known.e 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) shall be transferred or credited to
Partnership at Closing. At Closing, Partnership shall assume
Contributor's obligations related to tenant security deposits to the
extent they are properly credited and transferred to Partnership.
Partnership agrees that it will indemnify, defend, hold Contributor
harmless and will indemnify Contributor 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.
G laundry income.
H any other charges incurred with respect to the Property which the
Partnership or the Contributors are obligated to pay.
I 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.
(2) All rent collected after Closing for any period prior to Closing
shall belong to Contributor and, if paid to Partnership,
Partnership shall promptly send such rent to the Contributor.
(3) All rent collected by the Contributor prior to the Closing for
rental periods subsequent to Closing shall be paid to Partnership
at Closing.
(4) All rent collected by Partnership or the Contributor for rental
periods after the Closing shall belong to Partnership and, if
paid to the Contributor, the Contributor shall promptly send such
rent to Partnership.
(5) Partnership will make reasonable efforts to collect all rents due
for the month of the Closing and any past due rents, but shall
not be required to bring suit to collect such rents. Any rent
received from any tenant after Closing shall first be applied to
pay any rent
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owing by that tenant for the month of the Closing and then to pay
rent owing for the then current month and thereafter in reverse
order of delinquency. Any rents due for the month of Closing (and
accruing prior to the Closing Date) and past due rents not
collected by Partnership within the period of 180 days following
the Closing Date shall be assigned to the Contributor without
recourse who may pursue such remedies for collection thereof for
its own account.
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
and except for actual taxes) shall be final upon expiration of
the sixtieth day after Closing.
5. COSTS. Partnership shall pay all recording fees, Partnership's attorneys'
fees, one-half of any applicable transfer and recordation taxes, the costs
of obtaining any 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 Contributor
shall pay one-half of any applicable transfer and recordation taxes,
attorneys' fees, if any, incurred by them in connection with this
transaction, and all other costs and expenses incidental to or in
connection with closing this transaction customarily paid for by the
transferor of similar property. Partnership shall pay all out-of-pocket
closing costs payable by the Contributor hereunder (excluding Contributor's
attorneys' fees which shall be paid directly by Contributor) and the
Contribution Value of the Property shall be reduced at Closing by the
amount so paid by Partnership.
6. EVIDENCE OF TITLE. The Contributor shall furnish to the Partnership, at
Contributor's expense, and within ten (10) days from the execution hereof,
a copy of the most recent title policy relating to the Property along with
the most recent instrument survey of the Property, in each case, to the
extent in its possession or control.
7. CLOSING DOCUMENTS.
A At the time of Closing, the Contributor shall deliver to Partnership
the following:
(1) A special warranty deed in the form provided for under the laws
of the state where the Property is located pursuant to which
Contributor shall warrant title only against anyone whomsoever is
lawfully claiming the Property, by through or under Contributor,
but not otherwise (the "Deed"). Such Deed shall convey the
Property to Partnership subject to: (i) all zoning and building
laws, ordinances, resolutions and regulations of all governmental
authorities having jurisdiction which affect the Property and the
use and improvement thereof; (ii) all leases identified in the
Rent Roll (hereinafter defined); (iii) ad valorem real estate
taxes for the current year and subsequent years which are not yet
due and payable; and (iv) easements, covenants, restrictions,
agreements and/or reservations of record, so long as they do not
interfere with the use of the Property as a rental apartment
complex, if any, (v) private, public and utility easements and
roads and highways, if any, and (vi) and any other exceptions not
objected to or waived
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by Partnership under Section 9(b)(collectively, 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 shown
on the Rent Roll;
(4) An Assignment of leases, security deposits and 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 Contributor may provide Partnership
with a credit at Closing for all security held by Contributor
(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 the Truck.
(6) Contributor's affidavit stating Contributor's federal taxpayer
identification number and certifying that Contributor 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) An executed original of the Registration Rights Agreement in the
form attached hereto as Exhibit E.
(9) An executed original of the Stock Put Agreement in the form
attached hereto as Exhibit F (the "Stock Put Agreement").
(10) An executed original of an assignment, assumption and termination
of Management Agreement assigning Contributor's interest as owner
under the Management Agreement.
(11) Any additional funds, documents and or instruments as may be
necessary for the proper performance by the Contributor of its
obligations contemplated by this Agreement.
B At the time of Closing, Partnership shall deliver to Contributor the
following:
(1) The Assignment;
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(2) Evidence of organization, existence and authority of Partnership
and HME and the authority of each person executing documents on
behalf of each, reasonably satisfactory to Contributor;
(3) An opinion of a nationally recognized law firm acting as counsel
for Partnership and HME reasonably acceptable in form and content
to the Contributor to the effect that (1) HME has been organized
in conformity with the requirements for qualification as a real
estate investment trust under the Code and currently qualifies to
be taxed as such, and (2) Partnership is classified as a
partnership and not as an association (or publicly traded
partnership) taxable as a corporation for federal income tax
purposes;
(4) Such cash as may be required of Partnership to pay closing costs
or charges properly allocable to Partnership;
(5) An Amendment to the Partnership's Partnership Agreement in the
form necessary to admit Contributor, Designees, Tower and their
respective designees as limited partners of the Partnership and
evidencing the issuance of the Units required pursuant to this
Agreement;
(6) An executed original of the Registration Rights Agreement in the
form attached hereto as Exhibit E;
(7) An executed original of the Stock Put Agreement in the form
attached hereto as Exhibit F; and
(8) Any additional funds, documents and or instruments as may be
necessary for the proper performance by Partnership of its
obligations contemplated by this Agreement.
(9) An executed original of an assignment, assumption and termination
of the Management Agreement assuming Contributor's interest as
owner under the Management Agreement and terminating the
Management Agreement.
C. At the time of the Closing, Tower shall deliver to the Partnership an
executed original of a termination of the Management Agreement.
8. INSPECTION. For a period of Thirty (30) days after the date of this
Agreement (the "Due Diligence Period"), the Contributor agrees that
Partnership and its authorized representatives shall have the right and
privilege to enter upon the Property and the Partnership'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
Contributor'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
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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. Contributor agrees to cooperate with
Partnership by making available to Partnership such records, plans,
drawings or other data as may be in Contributor's possession or control
relating to the Property and its operation; excluding however, any files
containing confidential documents such as personnel documents, tax returns,
appraisals, market analyses, projections, internal communications, or
correspondence between the property manager and Contributor. Partnership
agrees that it will provide Tower and Contributor with a copy of any third
party reports received by Partnership with respect to its due diligence
activities pursuant to this paragraph. 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 in the
amount of $13,434,563 from the Title Company. Partnership hereby agrees to
indemnify, defend and hold Contributor, Contributor's tenants, agents,
employees, partners 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
prior to any physical inspection or testing at the Property, it or its
agents will provide the Contributor with appropriate evidence of insurance
reasonably satisfactory to Contributor. 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 Contributor in writing of such decision within the Due
Diligence Period (the "Termination Notice"). In such event, this Agreement
shall be null and void and neither party shall have any further rights or
obligations under this Agreement. 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 the Agreement as provided
in this Section 8.
9. TITLE; TITLE EXAMINATION; OBJECTIONS TO TITLE.
A Contributor shall convey the Property to Partnership by Deed, subject
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) days after Partnership's receipt of the Title
Commitment Partnership shall deliver to Contributor a statement (a
"Statement of Title Defects") of defects, encumbrances or objections
to title or survey matters ("Title Defects"). If Partnership fails to
deliver a Statement of Title Defects within such time period as
aforesaid, such failure shall be deemed to be a waiver of any such
Title Defects and Contributor shall convey title in accordance with
this Agreement and such Title Defects will be additional Permitted
Exceptions. Upon receipt of Partnership's Statement of Title Defects,
Contributor shall have five (5) business days to determine whether it
wishes to attempt to cure any matters shown on such statement. If
Contributor is unable or unwilling to cure or attempt to
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cure any such
matters, Contributor shall give notice to Partnership within such five
(5) day period, but if no such notice is given, Contributor shall be
deemed to be unwilling to cure any such Title Defects. If Contributor
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 Contributor notice that
it has elected to take title to the Property subject to the Title
Defects without abatement of the Contribution Value and such Title
Defects will be additional Permitted Exceptions. If no notice is given
by the Partnership within the ten (10) day period, the Partnership
shall be deemed to have terminated this Agreement. Partnership agrees
that Contributor shall be under no obligation whatsoever to commence
any proceedings, suits or actions to clear title or eliminate any
Title Defects or expend any funds in connection therewith.
10. CLOSING DATE. Unless this Agreement is terminated as provided herein, the
Closing shall occur within 10 days after the end of the Due Diligence
Period (as hereinafter defined) (the "Closing" or "Closing Date") at the
Contributor's office.
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 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 Contributor, Tower and Partnership each represent
to the other that there are no fees or commissions due as a result of their
employment of any Broker other than the fees due to Xxxxx Xxxxxxx, which
fees Partnership agrees to pay. The Contributor, Tower 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 other broker by the indemnifying party.
This representation and indemnity shall survive the Closing.
13. RISK OF LOSS. Risk of loss resulting from any eminent domain proceeding
which is commenced prior to Closing, and risk of loss to the Property due
to fire or any other casualty prior to Closing shall remain with
Contributor. If prior to the Closing the Property or any portion thereof is
destroyed or damaged in excess of $250,000, or if the Property or any
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,
Contributor shall notify Partnership thereof within a reasonable time after
receipt of actual notice thereof by Contributor, but in any event prior to
Closing, and, at its option, Partnership may, within 5 days after receipt
of such notice, elect to cancel this Agreement in which event this
Agreement shall terminate and the Deposit shall be returned to Partnership.
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 $250,000, this Agreement shall remain in full
force and effect and the contribution contemplated herein, less any
interest taken by eminent domain or condemnation, shall be effected with no
further adjustment, and upon the Closing of this contribution, Contributor
shall assign, transfer and set over to Partnership all of the right, title
and interest of Contributor in and to any awards that have been or that may
thereafter be made for such taking, and Contributor shall assign, transfer
and set over to Partnership any insurance proceeds
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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.
Contributor 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.
A It shall be a condition to Partnership's obligation to consummate the
Closing that there are at Closing 293 apartment units in rentable
condition and one apartment unit converted for use as the Property
Office and with respect to all of which the Contributor has received
no notice from any governmental authority or agency having
jurisdiction over the Contributor, the Property and the Other Items
stating that the Contributor, the Property or the Other Items are in
violation of any federal, state, county or local laws, ordinances,
rules and regulations. In the event that the Contributor has received
any such notice, then at its election, the Contributor shall have up
to sixty (60) days after the receipt of such notice to cure any
violation set forth therein and the Closing Date shall be extended to
that date which is five days after the violation has been cured, but
such extension is not to be for more than 65 days. If the Contributor
fails to notify the Partnership that it has elected to cure any such
violation within 10 days of the receipt of any such notice, then the
Contributor shall be deemed unwilling to cure any such violation.
B It shall be a condition to Partnership's obligation to consummate the
Closing that the Partnership has not exercised its right to terminate
this Agreement as provided in Section 8.
C It shall be a condition to Partnership's obligation to consummate the
Closing that on or before the Closing Date, all management agreements
relating to the Property shall have been terminated, other than the
Management Agreement, the termination of which shall be effected by
the Partnership and Tower immediately after its contribution to the
Partnership in accordance with this Agreement.
D It shall be a condition to Partnership's obligation to consummate the
Closing that 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 conditions set forth in this Section 14 are
for Partnership's benefit and may be waived by Partnership at any
time. If the above conditions are not satisfied or waived by the
Partnership, the Partnership shall have the right to terminate this
Agreement by written notice to the Contributor. 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 Partnership shall have the right to the return of its Deposit
and the obligations set forth in Sections 8 and 12 herein shall
survive any such termination.
15. CONDITIONS TO THE PARTIES' OBLIGATIONS TO CLOSE. In addition to all other
conditions set forth herein, the obligation of Contributor and Tower, on
the one hand, and Partnership, on the other hand, to consummate the Closing
contemplated hereunder shall be contingent upon the following:
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A The other party's representations and warranties contained herein
shall be true and correct as of the date of this Agreement and the
Closing Date.
B As of the Closing Date, the other party shall have performed its
obligations hereunder and all deliveries to be made at Closing have
been tendered;
C 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
D 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.
E With respect to Contributor's and Tower's obligations to consummate
the Closing, as of the Closing Date, Xxxxxxxx Xxx shall have
contributed and the Partnership shall have accepted the Xxxxxxxx Xxx
Property pursuant to the Xxxxxxxx Xxx Contribution Agreement and the
transactions contemplated therein have closed simultaneously with the
transactions contemplated hereby.
So long as a party is not in default hereunder, if any condition to
such party's obligation to proceed with the Closing hereunder has not
been satisfied as of the Closing Date, such party may, in its sole
discretion, (i) terminate the Agreement by delivering written notice
of termination to the other party on or before the Closing Date
specifying the unsatisfied condition entitling the non-defaulting
party to terminate this Agreement and provided the other party fails
to satisfy the condition specified in the notice within five days
after receipt of the notice; (ii) elect to extend the Closing for up
to 60 days until such condition is satisfied, and (iii) elect to
consummate the transaction, notwithstanding the non-satisfaction of
such condition, in which event such party shall be deemed to have
waived any such condition. In the event such party elects to close,
notwithstanding the nonsatisfaction of such condition, there shall be
no liability on the part of any other party hereto for breaches of
representations and warranties of which the party electing to close
had actual knowledge at the Closing. Notwithstanding the foregoing,
the failure of a condition due to the breach of a party shall not
relieve such breaching party from any liability it would otherwise
have hereunder. So long as the Partnership is not in default
hereunder, upon termination of this Agreement as provided above, the
Partnership shall have the right to the return of its Deposit.
16. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. The Contributor makes the
following representations and warranties to Partnership as of the date
hereof and as of Closing:
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A To the best of the Contributor's knowledge, the leases (the "Leases")
listed on the rent roll attached hereto as Exhibit G and the contracts
listed on the attached Exhibit H (the "Contracts") comprise all of the
leases and rights to the property and all of the contracts to which
Partnership will be subject on the Closing Date
B. All of Contributor's obligations under the Leases and Contracts are
fully performed and, to the best of such Contributor's knowledge,
except as set forth on the attached Exhibits and except for
delinquencies in the payment of rent for the current month, there is
no default under any of the Leases and Contracts by any party thereto
or no event which, with the giving of notice or passage of time, or
both, would constitute a default thereunder. There are no other
security deposits (the "Security Deposits") except as identified on
Exhibit G.
C. The Contributor has made no prior assignment or conveyance of the
Leases, Security Deposits and Contracts and the Contributor is the
valid holder of landlord's interest in the Leases, and has the full
power and authority to assign its interest in the Leases, Security
Deposits and Contracts to Partnership.
D To the best of the Contributor's knowledge, there is no litigation,
proceeding or investigation pending, or to the knowledge of the
Contributor threatened, against or affecting the Contributor that
might affect or relate to the validity of this Agreement, any action
taken or to be taken pursuant hereto, or the Property or the Other
Items or any part or the operation thereof, whether or not fully
covered by insurance.
E To the best of the Contributor's knowledge, the Contributor has not
received any written notices from any governmental authority or agency
having jurisdiction over the Contributor or the Property that the
Contributor, the Property or the Other Items are 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, 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. Promptly upon receipt of any such notice, the Contributor shall
provide the Partnership with a copy.
F All of Tower's obligations under the Management Agreement have been
performed and the Partnership has no claim of any nature against Tower
or any of its successors and assigns relating to the Management
Agreement.
The Partnership acknowledges, understands and agrees that, except as
provided in this Agreement to the contrary, Partnership's acquisition
of the Property and Other Items and any other rights and interests to
be contributed, conveyed, transferred and/or assigned is on an "AS IS"
"WHERE IS" PHYSICAL BASIS, WITHOUT REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WITH REGARD TO PHYSICAL CONDITION OR COMPLIANCE WITH ANY
LEGAL REQUIREMENTS OR TITLE EXCEPTIONS OF THE PROPERTY, INCLUDING
WITHOUT LIMITATION ANY LATENT OR PATENT DEFECTS, CONDITION OF SOILS
(INCLUDING SURFACE AND SUBSURFACE CONDITIONS), EXISTENCE OR NON
EXISTENCE OF HAZARDOUS SUBSTANCES OR POLLUTANTS, QUALITY OF
CONSTRUCTION, STATE OF REPAIR, WORKMANSHIP, MERCHANTABILITY
Page 12
OR FITNESS
FOR ANY PARTICULAR PURPOSE OR AS TO THE PHYSICAL MEASUREMENTS OR
USABLE SPACE THEREOF, TITLE TO THE PROPERTY, THE ASSIGNABILITY,
ASSUMABILITY OR TRANSFERABILITY OR VALIDITY OF ANY LICENSES, PERMITS,
GOVERNMENT APPROVALS, WARRANTIES OR GUARANTIES RELATING TO THE
PROPERTY OR THE USE OR OPERATION THEREOF, ZONING, BUILDING CODE,
ACCESS, ENVIRONMENTAL, FIRE OR LIFE SAFETY, SUBDIVISION OR OTHER
ORDINANCES, LAWS, CODES OR REGULATIONS, OF ANY KIND, PRIOR OR CURRENT
OPERATIONS CONDUCTED ON THE PROPERTY AND SURROUNDING PROPERTY, OR ANY
COVENANTS, CONDITIONS, RESTRICTIONS OR DECLARATIONS OF RECORD AND ALL
OTHER MATTERS OR THINGS AFFECTING OR RELATING TO THE PROPERTY.
As used in the foregoing representations and warranties, the phrase
"to the best of Contributor's knowledge" shall mean the actual, conscious
knowledge of Xxxxx X. Xxxxxx, the Contributor's Director of Operations.
The representations and warranties of the Contributor contained in
this Agreement, the statements in any Exhibit or Schedules attached to this
Agreement, or other instruments furnished to Partnership 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 of a material fact, or fail to state a material fact necessary
to make it not misleading.
The representations and warranties contained herein shall not survive
delivery of the Deed and shall merge therein. This expiration shall not
apply to the representation set forth in paragraphs 16.D. and 16.F. or to
any breach of warranty or representation which arises out of an intentional
material misrepresentation made by the Contributor.
17. REPRESENTATIONS AND WARRANTIES OF PARTNERSHIP. Partnership represents and
warrants to the Contributor, Tower and Designees as of the date hereof and
as of the Closing as follows:
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 This Agreement has been duly authorized, executed and delivered and
constitutes a legal and binding obligation of Partnership, 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 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.
Page 13
D HME has been organized in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986 (the "Code") and its method of operation is
expected to enable it to continue to satisfy the requirements for
taxation as a real estate investment trust under the Code for the
fiscal year ending December 31, 1997 and in the future.
E The Partnership is classified as a partnership and not as an
association (or publicly traded partnership) taxable as a corporation
for federal income tax purposes.
F (i) HME and the Partnership have filed or caused to be filed all
federal, state, local, foreign and other tax returns, reports,
information returns and statements required to be filed by them; (ii)
HME and the Partnership have paid or caused to be paid all taxes
(including interest and penalties) that are shown as due and payable
on such returns or claimed by any taxing authority to be due and
payable with respect to such returns, except those which are being
contested by them in good faith by appropriate proceedings and in
respect of which adequate reserves are being maintained on their books
in accordance with generally accepted accounting principles
consistently applied; (iii) HME and the Partnership do not have any
material liabilities for taxes other than those incurred in the
ordinary course of business and in respect of which adequate reserves
are being maintained by them in accordance with generally accepted
accounting principles consistently applied; (iv) as of the date of
this Agreement, Federal and state income tax returns for HME and the
Partnership have not been audited by the Internal Revenue Service or
state authorities; (v) as of the date of this Agreement, no
deficiency, assessment with respect to, or proposed adjustment of,
HME's or the Partnership's federal, state, local, foreign or other tax
returns is pending or, to the best of the Partnership's knowledge,
threatened; and (vi) as of the date of this Agreement, there is no tax
lien, whether imposed by any federal, state, local or other tax
authority, outstanding against the assets, properties or business of
HME or the Partnership
G. The Partnership has delivered to Contributor a complete and correct
copy of: (i) the Articles of Incorporation and by-laws of HME; and
(ii) the Second Amended and Restated Agreement of Limited Partnership
of Partnership, in each case, as amended.
H. The Partnership has previously made available to the Contributor as
requested in writing by the Contributor complete and correct copies
of: (i) the annual report on Form 10-K for HME for the period ending
December 31, 1996; (ii) all quarterly reports on Form 10-Q for HME for
each of the first three quarters in 1997; (iii) definitive proxy
statement for HME for the 1997 Shareholders' Meeting; (iv) any current
reports on Form 8-K filed by HME since September 30, 1997; and (v) any
other form, report, schedule and statement and filed by HME for 1997
with the Securities and Exchange Commission ("SEC") under the Exchange
Act, since January 1, 1997 (collectively, the "SEC Documents"). As of
their respective dates, each of the SEC Documents complied in all
material respects with the requirements of the Exchange Act to the
extent applicable to such SEC Documents, and none of such SEC
Documents (as of their respective dates) contained an untrue statement
of a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except as the same was corrected or
superseded in a subsequent document duly filed with the SEC.
Page 14
HME is not aware of any reports or filings required to be filed under
the Exchange Act with the SEC under the rules and regulations of the
SEC that have not been filed.
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 Contributor 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 not merge therein.
18. 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 Contributor, which may be granted or withheld in its
sole discretion.
19. 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 Contributor
and Tower: c/o The Tower Companies
Attn: Xxxxxxx X. Xxxxxxxx
00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
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
20. PLANS. The Contributor agrees to provide Partnership with all plans and
architectural drawings in their possession for the improvements completed
at the Property, including, without limitation, all "as-built" plans in
their possession and the Contributor further agree that they will endeavor
to turn over the same to Partnership at the Property during the Due
Diligence Period.
21. APPLICABLE LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of Virginia.
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 Partnership, Tower and the Contributor.
Page 15
24. CONFIDENTIALITY. By execution of this Agreement and except as otherwise
provided herein, prior to the Closing the Contributor, Tower 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. The
Partnership agrees that it will obtain the consent of the Contributor,
which shall not be unreasonably withheld or delayed, with respect to the
content of any press releases to be issued on or after the Closing Date by
the Partnership relating to the transaction described herein.
25. CONTRIBUTOR COVENANTS.
A Upon the request of the Partnership, the Contributor will provide, or
cause to be provided, a signed representation letter substantially in
the form attached hereto as Exhibit I. The Contributor will provide
access by 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 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.
B Prior to the Closing Date, the Contributor shall continue to fulfill
all of their obligations under the terms of the leases encumbering the
Property and under the service contracts and the Contributor shall
operate, maintain and repair all landscaping, buildings, fixtures and
facilities in accordance with its current practices.
C Contributor covenants that it hereby waives any and all claims it may
have against the Partnership as assignee of the Management Agreement
relating to any defaults by Tower in the performance of its
obligations under the Management Agreement.
D The Contributor covenants that it will not assign its Units to any
person or entity unless such person or entity shall establish that
they are an accredited investor under applicable securities laws,
unless prior to that assignment the Contributor or the assignee has
properly exercised their rights under the Stock Put Agreement, such
exercise to be immediately effective upon receipt of the assigned
Units.
26. PARTNERSHIP COVENANTS.
A The Partnership hereby covenants to the Contributor, Tower and any
Designees as follows:
(i) For a period of fifteen (15) years from and after the Closing
Date, the Partnership shall not sell, exchange, transfer or
otherwise dispose of the Property unless such transaction occurs
in a manner as to be tax free to the Contributor and its
partners, Tower and any Designees and their respective successors
and assigns. After the foregoing 15-year period, Partnership will
use commercially reasonable efforts to effect any disposition of
all or part of the Property through a I.R.S. Code Section 1031
tax-free exchange or other
Page 16
transaction which does not cause federal income tax gain to
be incurred by the Contributor, its partners, Tower, any
Designees and their respective successors and assigns. In the
event that the Partnership breaches any of its obligations set
forth in this Section 26(A)(i), Partnership shall indemnify,
defend and hold harmless each of Contributor, its partners,
Tower, any Designees and their respective successors and assigns
(each an "Indemnified Party" and collectively the "Indemnified
Parties") from and against the aggregate federal, state and local
income taxes incurred by such Indemnified Party as a result
thereof (collectively, "Taxes") plus the Taxes incurred by such
Indemnified Party as a result of the receipt of the Indemnity
Payment (the "Tax Indemnity Amount"). Any such Taxes shall be
deemed to be the amount of gain or income recognized by the
relevant Indemnified Party multiplied by the highest actual rate
or rates imposed upon such Indemnified Party for such gain or
income (assuming it is the last dollar of income or gain) for the
year in which such gain or income is recognized. In determining
the Tax Indemnity Amount, no effect shall be given to the
Indemnified Parties' tax deductions, tax credits, tax carry
forwards nor to any other of their tax benefits or tax
attributes. The Tax Indemnity Amount shall be payable by the
Partnership to each Indemnified Party not later than thirty (30)
days following the filing of tax returns for the Indemnified
Party for the year in question.
(ii) The Partnership hereby guaranties to Contributor, Tower, any
Designees and their respective successors, assigns, and designees
that for the Applicable Period (hereinafter defined): (a) the
value of each Unit shall not be less than the initial Market
Value; and (b) each Unit shall receive or accrue a return on the
initial Market Value of not less than eight percent (8%)
compounded quarterly (the "Value Guaranty"). For purposes of the
foregoing Value Guaranty, the 8% return shall be deemed to
include both (x) cash and non-cash dividends and distributions
relating to the Units paid or payable with respect to the
Applicable Period, and (y) amounts by which the value of the
Units (based on the average closing price for 20 consecutive
trading days prior to, but not including, the expiration date of
the relevant Applicable Period of a share of common stock of HME
as listed on the New York Stock Exchange) at the end of the
Applicable Period exceeds the initial Market Value.
The Partnership shall pay any obligations accruing under the
foregoing Value Guaranty with respect to each Unit upon the
expiration of the relevant Applicable Period in the form of
additional Units. Two examples of the application of the
foregoing Value Guaranty are attached as Exhibit J.
For purposes of this Section, the term "Applicable Period" means
the shorter of the following three periods of time: (aa) from the
Closing Date to the 36th month anniversary of the Closing Date;
(bb) from the Closing Date to the date on which the Unit owner
exercises its Purchase Right (as defined in the Partnership
Agreement); and (cc) from the Closing
Page 17
Date to the date on which
the Unit owner exercises its put rights pursuant to the Stock Put
Agreement.
(iii)The Partnership covenants and agrees that it shall use its
reasonable commercial efforts to cause HME to continue to be
taxed as a real estate investment trust under the Code unless the
Board of Directors of HME determines that it is in the best
interests of shareholders of HME to be taxed otherwise.
(iv) The Partnership agrees to use the "traditional method" under
Section 704(c) of the U.S. Internal Revenue Code to adjust for
discrepancies between the agreed-upon value of the various
components of the contributed Property (or for any property
received in exchange for the contributed Property in a like-kind
exchange) and the adjusted tax basis of such components.
27. REPRESENTATIONS AND COVENANTS OF TOWER.
A Tower hereby represents and warrants to the Partnership as of the date
hereof and as of the Closing Date that it has made no prior assignment
of its rights under the Management Agreement and that it has the full
power and authority to assign its interest in the Management Agreement
to the Partnership.
B Tower hereby represents and warrants that it is an accredited investor
under the applicable securities laws and covenants that it will not
assign its Units to any person or entity unless such person or entity
shall establish that they are also such an accredited investor.
28. DEFAULT. In the event that Partnership fails to acquire the Property
pursuant to this Agreement other than by reason of a termination by
Partnership expressly permitted hereunder or Contributor's or Tower's
default, Partnership agrees that Contributor's and Tower's sole remedies
shall be (i) to have the Title Company deliver the Deposit to Contributor
and Tower as liquidated damages to recompense Contributor and Tower for
time spent, labor and services performed, and loss of its bargain and to
terminate this Agreement; or (ii) to seek specific performance. The
Partnership acknowledges that in the event of such a failure by the
Partnership, the damages suffered by the Contributor and Tower will be
difficult to ascertain with certainty. Therefore, the Partnership, the
Contributor and Tower agree that in the event of such a failure by the
Partnership, and if the Contributor and Tower do not elect to seek specific
performance, then the sum of $270,000 is a good faith estimate of the
Contributor's and Tower's damages and at Contributor's election said sum
shall be promptly paid to Contributor and Tower in the form of the Deposit.
In such event the Contributor and Tower agree to accept the Deposit as
Contributor's and Tower's total damages and relief hereunder in the event
of Partnership's default hereunder. In the event that Partnership does so
default and this Agreement is terminated, Partnership shall have no further
right, title, or interest in the Property. In the event Contributor fails
to sell the Property to Partnership pursuant to this Agreement or Tower
fails to terminate the Management Agreement other than by reason of a
termination by Contributor expressly permitted hereunder or Partnership's
default, Partnership's sole remedies shall be (i) cancellation of this
Agreement in which event Partnership shall be entitled to the return by the
Title Company to Partnership of the Deposit, or (ii) to seek specific
performance. In no event shall either party be entitled to any remedies or
damages for breach of this Agreement, except as set forth
Page 18
hereinabove. And
in no event shall any party be entitled to punitive or consequential
damages for the breach of this Agreement.
29. RECORDATION. Neither Party may record this Contribution Agreement; and any
recordation shall render the contract void. Also, neither party may file a
lis pendens against the Property.
30. TOWER'S INABILITY TO PERFORM. Notwithstanding anything set forth herein to
the contrary, if Tower is unable or unwilling to contribute the Management
Agreement to the Partnership at Closing: (i) this Agreement shall remain in
full force and effect; (ii) Tower shall be deleted as a party to this
Agreement, shall have no rights or liabilities hereunder and shall be
released of any liabilities accruing under this Agreement by the other
parties hereto; (iii) the Contributor's Contribution Value shall be
increased by the amount of Tower's Contribution Value; (iv) Contributor
shall deliver the Property to the Partnership free and clear of the
Management Agreement; and (v) Contributor shall indemnify, defend and hold
Partnership harmless from any claims made by Tower for any management fees
respecting the Property.
31. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach or the validity thereof shall be settled by final
and binding arbitration in accordance with the most current Commercial
Arbitration Rules (the "Rules") of the American Arbitration Association
("AAA"). The arbitration shall be conducted by a tribunal of three (3)
arbitrators (the "Tribunal"). Each party shall appoint an arbitrator within
ten (10) days from the filing of the Demand and Submission in accordance
with Paragraph 7 of the Rules and the two (2) arbitrators shall jointly
appoint the third arbitrator, within fifteen (15) days from their
appointment, in accordance with Paragraph 7 of the Rules. If the two (2)
appointed arbitrators fail to agree upon a third arbitrator within said
fifteen (15) days and fail to agree to an extension of such period, the
third arbitrator shall be appointed by the AAA in accordance with Paragraph
15 of the Rules. The place of arbitration shall be Arlington, Virginia and
the Award shall be issued at the place of arbitration. The Tribunal may,
however, call and conduct hearings and meetings at such other places as the
parties may agree. The law applicable to the arbitration procedure shall be
the Federal Arbitration Act (the "Act") as supplemented by any law of the
place of arbitration which is not inconsistent with the Act.
The decision of the Tribunal (the "Award") shall be made within ninety (90)
days of the appointment of the Tribunal pursuant to the provisions hereof,
and the parties hereby agree that any such decision need not be accompanied
by a reasoned opinion. The Award may, except as limited by Section 27 of
this Agreement, include (i) recovery of actual damages for violation of any
obligations under this Agreement or of governing law, including the
recovery of attorneys' fees to the prevailing party (ii) injunctive relief
against threatened or actual violations of any obligation under the
Agreement or of governing law or (iii), if and to the extent permitted
under the terms of the Agreement, the remedy of specific performance. The
Award shall be final and binding on the parties. Judgment upon the Award
may be entered in any court having jurisdiction thereof or having
jurisdiction over one or more of the parties or their assets. The parties
specifically waive any right they may enjoy to apply to any court for
relief from the provisions of this Agreement or from any decision of the
Tribunal made prior to the Award.
Page 19
32. 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.
33. SIGNATURE BY FACSIMILE. The parties may execute and deliver this Agreement
by forwarding signed facsimile copies of their signature page to this
Agreement and delivering an original of the same by overnight courier. Such
facsimile signatures shall have the same binding effect as original
signatures, and the parties hereby waive any defense to validity based on
any such copies or signatures.
34. ACCREDITED STATUS. The Contributor and Tower hereby represent to the
Partnership that they each are as of the date of this Agreement, and will
be as of the Closing Date, an accredited investor under applicable
securities laws.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be
executed as of the day and date first above written.
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
General Partner
By: /s/ Xxx X. Xxxx
---------------------------------
Title: Executive Vice President
PARK SHIRLINGTON LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxxx
Title: General Partner
Page 20
PARK SHIRLINGTON LIMITED PARTNERSHIP
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Print Name: Xxxxxxx Xxxxxxxxx
Title: General Partner
Page 21
PARK SHIRLINGTON LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxx
---------------------------------
Print Name: Xxxx X. Xxxxx
Title: General Partner
Page 22
TOWER CONSTRUCTION GROUP, L.L.C
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Title: Manager
Page 23
