Exhibit 2.5
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement"), made as of the 26th day of
November , 1997 by and between
HOME PROPERTIES OF NEW YORK, L.P., a New York limited partnership,
having its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (herein called "Buyer"), and
CEDAR ▇▇▇▇ ASSOCIATES, having an office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (herein called the "Seller").
W I T N E S S E T H:
WHEREAS, Seller is the fee owner of a certain residential apartment complex
located in the City of Philadelphia, State of Pennsylvania more commonly known
as Cedar ▇▇▇▇ Apartments, 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:
1. REAL PROPERTY DESCRIPTION. The Real Property to be conveyed consists of one
or more parcels of land known as Cedar ▇▇▇▇ Apartments, which includes 110
apartments (the "Project"), located in the City of Philadelphia and State
of Pennsylvania, more particularly described on Exhibit "A", attached
hereto, together with and including all buildings and other improvements
thereon, including but not limited to, the 110 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").
2. 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 all heating, plumbing and lighting fixtures,
B ranges, refrigerators and garbage disposals (one for each
apartment),
C water heaters,
D any and all bathroom fixtures, wall-to-wall carpeting, exhaust
fans, signs, screens, maintenance building, model unit furniture,
fences, carpeting and runners, cabinets, mirrors, shelving, any
air conditioning units, mail boxes, office furniture, and related
equipment, if any, in connection with the Project and which are
owned by Seller,
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E other than a computer, a printer, a fax machine and a photo
copier, any fixtures appurtenant to the Property and any other
furniture or equipment used in connection with the operation and
maintenance of the Property (hereinafter with the items listed in
A-D above, collectively, the "Other Items") and which are owned
by the Seller.
Seller's interest in the Other Items will be transferred to Buyer
by absolute ▇▇▇▇ of Sale.
3. 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.
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.
4. PRICE AND MANNER OF PAYMENT.
A. The purchase price for the Property shall be a total of Two
Million Six Hundred Thousand and NO/100 ($2,600,000) (the
"Purchase Price") payable as follows: (i) by payment of $50,000
(the "Deposit") as a deposit; and (ii) the remainder payable at
Closing by check or by wire transfer to an account designated by
Seller.
B The Deposit shall be paid to Mesirov, Gelman, Jaffe, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ (the "Escrow Agent"), who shall deposit that amount in
an interest bearing account. The Deposit (with interest) shall be
applied against the Purchase Price at Closing. 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 sewer charges,
D fuel,
E electricity,
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F all rentals and security deposits (including interest thereon)
pursuant to the leases,
G charges under the Service Contracts,
H laundry income;
I any other charges incurred with respect to the Property which
Seller is obligated to pay; and
J Rents.
(1) All rent payments collected for the month of Closing shall
be deemed 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 the sixtieth day after Closing.
6. COSTS. Buyer shall pay all recording fees, one-half of the transfer tax,
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,
up to $15,000.00 towards the prepayment penalty with respect to the
existing mortgage on the Property 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 one-half of
the transfer tax, attorneys' fees, if any, incurred by Seller in connection
with this transaction, any prepayment penalty in excess of $15,000.00 and
all other costs and expenses incidental to or in connection with closing
this transaction customarily paid for by the seller of similar property.
7. TITLE AND SURVEY. Within ten (10) days after the date of this Agreement
Seller shall provide Buyer with a copy of the most recent title policy and
instrument survey of the Property in Seller's possession.
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
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expense and Buyer or its agents shall supply
Seller with proof of insurance as requested by Seller. Seller agrees 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,
and agrees further to restore to its original condition, at Buyer's own
cost and expense, any property disturbed by such entry.
9. TITLE DOCUMENTS. At the time of Closing, Seller shall deliver to Buyer the
following:
A A warranty deed conveying good and marketable title to the
Property.
B A ▇▇▇▇ 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 listed on the Rent Roll.
E An assignment, assumption, and indemnity agreement of all of
Seller's rights and obligations to all contracts affecting the
Property (the "Service Contracts), to all leases encumbering the
Property and to all security deposits (including interest
thereon) in substantially the form attached hereto as Exhibit B.
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. In either case, Buyer will
indemnify and hold the Seller harmless from any claims from
residents with respect to security deposits transferred to Buyer
or for which Buyer is provided a credit at Closing as the case
may be.
F As specified by Buyer, a copy of all data concerning the Property
that is stored in the computer that is excluded from the sale.
10. TITLE EXAMINATION; OBJECTIONS TO TITLE.
A Within the Due Diligence Period (as hereinafter defined), Buyer
agrees to furnish to Seller 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 cannot cure.
C In the absence of such notice from Seller, Seller shall be
obligated to cure the title objections, if any, made by Buyer. If
Seller notifies Buyer that 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
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then, except as hereinafter
provided, Buyer may elect, by written notice to Seller, to
either:
(1) terminate this Agreement by notice delivered to the
Seller within five (5) days of receipt of Seller's
notice that Seller cannot cure the title objections, or
is unwilling or unable to obtain title insurance 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 and if Buyer
elects to do so, Seller shall have no right to
terminate this Agreement as hereinabove provided. 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.
(3) 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, to the best of Seller's knowledge,
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 a multi- residential dwelling.
12. CLOSING DATE. The Closing shall occur not less than 65 nor more than 80
days after the end of the Due Diligence Period (as hereinafter defined)
provided that the Buyer does not terminate this Agreement as permitted
herein (the "Closing" or "Closing Date") by mail or at the Seller's office,
or at such other time and place 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 other than ▇▇▇▇▇▇ and Glatstian
Associates, Inc. and that Buyer shall be responsible for the payment of all
fees and commissions to that broker. 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.
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15. 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. Upon the happening of such event, but only if the cost of repair or
replacement exceeds $100,000. Buyer shall have the election of terminating
this Agreement without further liability hereunder, or of completing this
purchase and receiving the Seller's share of insurance monies, collectible
for such loss or damage, or the award for such taking by eminent domain. In
the event that the cost of repair or replacement is less than $100,000,
Buyer shall not have the option of terminating this Agreement, but shall
have the right to receive the Seller's share of insurance monies,
collectible for such loss or damage, or the award for such taking by
eminent domain.
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 110 apartment units in rentable condition, and to
the best of Seller's knowledge which are all in compliance with
federal, state, county or local laws, ordinances, rules and
regulations;
C Buyer shall have [forty-five (45)] 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 Phase I 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, Service Contracts, executory contracts,
and such other matters as Buyer shall deem reasonably necessary
or appropriate in connection with the Property and the Other
Items. 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, except Buyer shall have the
right to the return of the Deposit. Buyer's failure to object
within the Due Diligence Period shall be deemed a waiver by Buyer
of the condition contained in this Section 16(C).
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. 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 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
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other person, used, generated,
stored, dumped, released, buried, dispersed or emitted any Hazardous
Substance on the Property in violation of Environmental Laws nor are there
any underground tanks on the Property, 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.), 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
promptly 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
promptly 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, 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 or any proceeding pending for the increase or
decrease of the assessed valuation of all or a portion of the
Property.
B To the best of Seller's knowledge, 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, health or price or wage control, ordinance, rule,
regulation or order applicable to the ownership, development,
operation or maintenance of the Property or the Other Items.
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C With the exception of one lease, there are no written leases
affecting the Property with a term greater than one (1) year.
D To the best of Seller's knowledge, there is no pending
condemnation of the Property, or any part thereof, or of any
plans for improvements which might result in a special assessment
against the Property.
E 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 with which Seller has not complied.
F Security deposits (with interest) held by Seller will be
correctly identified by Seller as of Closing with respect to the
Property.
G 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.
H Until Closing, Seller shall continue to fulfill all of its
obligations under the terms of the Leases encumbering the
Property, and under the Service Contracts, and Seller shall
operate, maintain and repair at Seller's expense, all
landscaping, buildings, fixtures and facilities and shall
continue to operate the Property in the manner in which Seller
currently does so.
I The Rent Roll to be given by Seller to Buyer at Closing will be
true and correct.
J The financial information previously provided to Buyer with
respect to the Property is substantially accurate.
K All of the ranges and refrigerators located within the apartment
units are the property of the Seller and not of the tenants.
L 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.
M Neither the entry into this Agreement, nor the carrying out of
the transactions contemplated herein has resulted or will result
in any violation of, or be in conflict with, or result in the
creation of, any mortgage, lien, encumbrance or charge (other
than those contemplated hereby) upon any of the properties or
assets of Seller pursuant to, or constitute a default under, any
certificate of incorporation, by-law, partnership agreement, or
mortgage, indenture, contract, agreement, instrument, franchise,
permit, judgment, decree, order, statute, rule or regulation
applicable to Seller or the Property.
N 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
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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.
O 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.
The representations and warranties of Seller contained in this
Agreement, the statements in any Exhibit or Schedules attached to this
Agreement, or other instruments furnished to Buyer at or prior to
Closing pursuant to this Agreement, or in connection with the
transactions contemplated by Seller pursuant to this Agreement, do not
contain any untrue statements of a material fact, or fail to state a
material fact necessary to make it not misleading.
The representations and warranties contained herein shall survive
delivery and recording of the deed and shall not merge therein.
Seller acknowledges that each of the representations made by it in
this paragraph 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 sale 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.
Irrespective of anything to the contrary contained herein, the
representations and warranties of Seller and the indemnity by Seller
herein contained shall expire and be of no further effect upon the
expiration of 12 months after Closing. This expiration shall not apply
to any breach of warranty or representation which arises out of fraud
or an intentional material misrepresentation made by Seller.
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.
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(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 be
assigned by Buyer to any affiliate without Seller's prior consent. Any
other assignment by Buyer shall require the Seller's prior written consent,
which consent shall not be unreasonably withheld. 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: ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a
copy to: Mesirov, Gelman, Jaffee, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To Buyer: HOME PROPERTIES OF NEW YORK, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
22. PLANS, WARRANTIES AND GUARANTIES. Seller agree to provide Buyer with all
plans and architectural drawings in Seller's possession for the
improvements completed at the Property, including, without limitation, all
"as-built" plans in Seller's possession and Seller further agrees that it
will endeavor to turn over the same to Buyer at Closing. Seller shall
assign to Buyer at Closing any and all guaranties and warranties Seller has
with respect to the Property, the improvements thereon, and the equipment
relating to the Property, if any.
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23. APPLICABLE LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of Pennsylvania.
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 C 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.
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.
For purposes of agreeing to act as By: Home Properties of New York, Inc.
Escrow Agent hereunder General Partner
MESIROV, GELMAN, JAFFE,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Chairman
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
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CEDAR ▇▇▇▇ ASSOCIATES
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Partner
/s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇, General Partner
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