Exhibit 2.6
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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (the "Partnership")
▇▇▇▇▇▇▇▇ ▇▇▇ LIMITED PARTNERSHIP, a Virginia limited partnership (the
"Contributor"), having its principal office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
TOWERCONSTRUCTION GROUP, LLC, a Maryland limited liability company
("Tower"), having its principal office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 date 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 Park
Shirlington Limited Partnership ("Park Shirlington") contributes to the
Partnership and the Partnership shall accept from Park Shirlington, the real
property described in Schedule 1 attached hereto (the "Park Shirlington
Property"), pursuant to a contribution agreement entered into between Park
Shirlington, Tower and the Partnership of even date herewith (the "Park
Shirlington 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 254 apartments and one apartment
converted for use as an office (the " Project"), located in Alexandria,
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 254 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 bathroom fixtures, exhaust fans, hoods, signs,
screens, maintenance building, fences, cabinets, mirrors,
shelving, mail boxes, 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 (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 Eleven
Million Six Hundred Forty-Six Thousand Three Hundred and Forty-Four
and no/100 Dollars ($11,646,344) (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.
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 Six Hundred Twelve Thousand Nine
Hundred Sixty-Six and no/100 Dollars ($612,966) ("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
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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 Thirty Thousand
Dollars ($230,000.00) 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.
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.
B water charges.
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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 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.
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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 by Partnership
under Section 9(b)(collectively, the "Permitted
Exceptions").
(2) A ▇▇▇▇ 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;
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(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) Reserved; A
(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;
(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;
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(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
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 $11,646,344 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
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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
▇▇▇▇ 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 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.
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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 ▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 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 254 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
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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:
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.
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E With respect to Contributor's and Tower's obligations to
consummate the Closing, as of the Closing Date, Park Shirlington
shall have contributed and the Partnership shall have accepted
the Park Shirlington Property pursuant to the Park Shirlington
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:
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.
Page 11
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 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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.
Page 12
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.
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
Page 13
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. 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:
Page 14
To the Contributor
and Tower: c/o The Tower Companies
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Partnership: HOME PROPERTIES OF NEW YORK, L.P.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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" plansin
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.
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.
Page 15
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
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.
Page 16
(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 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.
Page 17
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 $230,000 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 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
Page 18
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.
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/ ▇▇▇ ▇. ▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
---------------------------
Page 19
▇▇▇▇▇▇▇▇ ▇▇▇ LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
Page 20
▇▇▇▇▇▇▇▇ ▇▇▇ LIMITED PARTNERSHIP
By: /s/ Lane ▇. ▇▇▇▇▇
----------------------------------
Print Name: Lane ▇. ▇▇▇▇▇
Title: General Partner
Page 21
▇▇▇▇▇▇▇▇ ▇▇▇ LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
Page 22
TOWER CONSTRUCTION GROUP, L.L.C
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
Page 23