EXHIBIT 2.9
PURCHASE AND SALE AGREEMENT
between
BLACKHAWK APARTMENTS LIMITED PARTNERSHIP,
as SELLER
and
HOME PROPERTIES OF NEW YORK, L.P.
as BUYER
DATED: April 17, 2000
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
by and between BLACKHAWK APARTMENTS LIMITED PARTNERSHIP, an Illinois
limited partnership ( Seller"), and HOME PROPERTIES OF NEW YORK, L.P., a
New York limited partnership ("Buyer").
RECITALS:
A. Seller is owner and operator of a residential apartment complex
commonly known as Blackhawk Apartments, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
B. Buyer desires to purchase that property, and Seller desires to
sell that property, on the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement, Buyer and Seller agree as follows:
1. PURCHASE AND SALE.
1.1 AGREEMENT TO BUY AND SELL . Subject to all of the terms and
conditions of this Agreement, Seller hereby agrees to sell and convey to
Buyer and Buyer hereby agrees to acquire and purchase from Seller the
following (collectively, the "Property"):
1.1.1 All of Seller's right, title and interest in and to that
certain parcel of real property described on EXHIBIT A attached hereto,
together with all of Seller's right, title and interest in and to all
easements, privileges and other rights, including but not limited to
development rights, air rights and water rights appurtenant thereto
(collectively, the "Land");
1.1.2 All of Seller's right, title and interest in and to all
improvements, structures, equipment and fixtures located on or under the
Land, including, but not limited to, the apartment buildings containing 371
apartment units and the adjoining parking area (collectively, the
"Improvements") (the Land and Improvements are herein collectively called
the "Project");
1.1.3 All of Seller's right, title and interest in and to all
tangible personal property, if any, located on or affixed to the Project
and used in connection with the ownership, operation or maintenance of the
Project, and all intangible property, if any, owned or held by Seller that
pertains to the ownership, maintenance, use or operation of the Project
(collectively, "Personal Property"); and
1.1.4 All of Seller's interest in any leases or other agreements
demising space in or providing for the use or occupancy of any portion of
the Project (collectively, the "Leases").
1.2 EXISTING FINANCING. The Property is presently subject to that
certain Mortgage, dated September 1, 1996, and recorded on September 10,
1996 as document number 96690160 with the Recorder of ▇▇▇▇ County,
Illinois, securing a note and related loan documents, a list of which is
attached as EXHIBIT B, in favor of PFC Corporation, a Delaware corporation
(the "Existing Financing").
1.3 ACCEPTANCE DATE. This Agreement shall be deemed effective on
the date of its execution by Seller (the "Acceptance Date"). Seller shall
provide Buyer with written notice of Seller's acceptance of this Agreement
on the Acceptance Date or the next business day.
1.4 PURCHASE PRICE . The purchase price to be paid by Buyer to
Seller for the Property shall be the sum of Seventeen Million Five Hundred
Thousand and no 00/100 Dollars ($17,500,000.00) (the "Purchase Price"),
subject to prorations and credits, including, if appropriate, a credit for
the amount of the Outstanding Balance (as defined below).
1.5 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable
as follows:
1.5.1 Concurrently with the Opening of Escrow (as defined
below), Buyer shall deposit into Escrow (as defined below), into an
interest bearing account, Fifty Thousand Dollars ($50,000) (which amount,
together with all accrued interest thereon, is referred to herein as
the "Initial Deposit"), by certified check or wire transfer of federal
funds or in another immediately available form. Unless Buyer exercises its
right to terminate this Agreement as provided in Section 3.3, on or before
5:00 p.m. Central Time on the 30th day after the Acceptance Date (the
"Decision Date"), Buyer shall, on or before the Decision Date, deposit the
additional sum of Two Hundred Fifty Thousand Dollars ($250,000) (which
amount, together with all accrued interest thereon, is referred to herein
as the "Additional Deposit") with the Escrow Holder (as defined below).
The Initial Deposit and the Additional Deposit shall hereinafter be
referred to as the "Deposit." Escrow Holder shall deposit the Deposit in
an interest-bearing account in an FDIC or FSLIC institution. The Deposit
shall be applied toward the Purchase Price upon Closing.
1.5.2 The balance of the Purchase Price shall be satisfied at
Closing (i) by Buyer's assumption of the Existing Financing, if
appropriate; and (ii) by Buyer's payment of the remainder by certified
check or wire transfer to an account designated by Seller.
2. OPENING OF ESCROW.
2.1 ESCROW; ESCROW HOLDER . Within three (3) days after the
Acceptance Date, an escrow (the "Escrow") shall be opened (the "Opening of
Escrow") with Chicago Title and Trust Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ("Escrow Holder").
2.2 ESCROW INSTRUCTIONS . The terms and conditions set forth in
this Agreement shall constitute both an agreement between Seller and Buyer
and escrow instructions for Escrow Holder. Seller and Buyer shall promptly
execute and deliver to Escrow Holder any separate or additional escrow
instructions requested by Escrow Holder which are consistent with the terms
of this Agreement. Any separate or additional instructions shall not
modify or amend the provisions of this Agreement unless otherwise expressly
set forth by mutual consent of Buyer and Seller.
As used in this Agreement, "Closing" shall mean the date and time on
which both the Title Company (as defined below) is committed to issue to
Buyer the Owner's Policy (as defined below) and Escrow Holder is prepared
to disburse to Seller the Purchase Price.
2.3 CLOSING DATE . Escrow shall close ten (10) business days after
the satisfaction or waiver of all conditions precedent in Article 3 of this
Agreement or the date determined under Section 3.6 or 3.7 as applicable,
but in any event, no later than one hundred twenty (120) days after the
Decision Date (the "Closing Date").
3. ACTIONS PENDING CLOSING.
3.1 DELIVERIES BY SELLER . Within five (5) days after the
Acceptance Date, Seller shall deliver to Buyer, or make available for
inspection at the Property, those documents and reports listed on EXHIBIT C
attached hereto, and copies of the loan documents listed on EXHIBIT B
attached hereto.
Buyer acknowledges that Buyer will rely solely on studies, if any,
performed under Buyer's direction. Seller assumes no duty to furnish Buyer
with any other existing information, reports or updates of such materials.
Except for a claim of breach of a representation or warranty set forth in
SECTION 4.1, Buyer hereby waives any and all claims against Seller arising
out of the accuracy, completeness, conclusions or statements expressed in
materials so furnished, and any and all claims arising out of any duty of
Seller or acquire, seek or obtain such materials.
3.1.1 BUYER'S REVIEW OF TITLE .
(a) Buyer acknowledges that it has received a current
commitment for title insurance issued by Chicago Title Insurance Company
(the "Title Company") showing the condition of title to the Property (the
"Title Commitment").
(b) Buyer must deliver to Seller written notice of Buyer's
disapproval of title as shown on the Title Commitment (those disapproved
title matters as so identified by Buyer are hereafter called the
"Disapproved Title Exceptions") within fifteen (15) days after the
Acceptance Date (the "Notice Date"). Buyer's failure to provide such
notice on or before such date shall constitute Buyer's approval of the
condition of title as shown on the Title Commitment.
(c) If Buyer timely notifies Seller of its Disapproved
Title Exceptions, Seller shall notify Buyer in writing within five (5) days
after the Notice Date that: (i) Seller will remove such Disapproved Title
Exceptions from title as of or before Closing; or
(ii) Seller will not remove any or certain specified Disapproved Title
Exceptions from title.
(d) If , within five (5) days after the Notice Date, (i)
Seller does not provide Buyer with written notice that it shall remove all
Disapproved Title Exceptions from title or (ii) if Seller notifies Buyer
that Seller will not remove any Disapproved Title Exceptions, Buyer shall
have the right to terminate this Agreement by delivery of written notice of
termination on or before the Decision Date and to receive the return of the
Deposit, as Buyer's sole and exclusive remedy. Buyer's failure to provide
such notice of termination on or before the Decision Date shall constitute
Buyer's waiver of its disapproval of the Disapproved Title Exceptions. In
the case of Buyer's waiver (or deemed waiver) of Disapproved Title
Exceptions, Seller shall have no obligation to remove or otherwise address
such Disapproved Title Exceptions from title, and such waived Disapproved
Title Exceptions shall be deemed approved. If Buyer elects to terminate
this Agreement pursuant to this SECTION 3.1.1(D), the provisions of
SECTION 3.3 shall apply. Except for the Disapproved Title Exceptions Seller
removes or covenants to remove, the exceptions to title shown by the Title
Commitment and any encumbrance arising from the acts of Buyer plus, if
applicable, the Rental Use Agreement (hereinafter described) are called the
"Permitted Exceptions" in this Agreement.
3.1.2 BUYER'S REVIEW OF SURVEY.
(a) Buyer acknowledges that it has received a copy of an
ALTA/ACSM survey of the Property, recertified August 27, 1996, as #962157,
revised September 6, 1996 as #962379 prepared by Gremley & Biedermann (the
"Survey") depicting the Property and any matters of record affecting the
Property.
(b) Buyer must deliver to Seller written notice of Buyer's
disapproval of any matter shown on the Survey on or before the Notice Date
(those disapproved survey matters are hereafter called the "Disapproved
Survey Exceptions"). Buyer's failure to provide such notice on or before
such date shall constitute Buyer's approval of the condition of the
Property as shown on the Survey.
(c) If Buyer timely notifies Seller of its Disapproved
Survey Exceptions, Seller shall notify Buyer in writing within five (5)
days after the Notice Date that: (i) Seller will remove such Disapproved
Survey Exceptions from title at or before Closing; or (ii) Seller will not
remove any or certain specified Disapproved Survey Exceptions from title.
(d) If , within five (5) days after the Notice Date, (i)
Seller does not provide Buyer with written notice that it shall remove all
Disapproved Survey Exceptions from the Survey or (ii) Seller notifies Buyer
that Seller will not remove any Disapproved Survey Exceptions (including
amendments to the Disapproved Survey Exceptions pursuant to SECTION
3.1.2(E) below), Buyer shall have the right to terminate this Agreement by
delivery of written notice of termination on or before the Decision Date
and to receive the return of the Deposit, as Buyer's sole and exclusive
remedy. Buyer's failure to provide such notice of termination on or before
the Decision Date shall constitute Buyer's waiver of its disapproval of the
Disapproved Survey Exceptions. In the case of Buyer's waiver (or deemed
waiver) of the Disapproved Survey Exceptions, Seller shall have no
obligation to remove or otherwise address such Disapproved Survey
Exceptions, and such waived Disapproved Survey Exceptions shall be deemed
approved. If Buyer elects to terminate this Agreement pursuant to this
SECTION 3.1.2(D), the provisions of SECTION 3.3 shall apply. Except for
the Disapproved Survey Exceptions Seller removes or covenants to remove,
the exceptions to title shown by the Survey and any encumbrance arising
from the acts of Buyer are also "Permitted Exceptions."
(e) At least ten (10) business days prior to Closing,
Buyer will be provided with an updated and recertified ALTA/ACSM Survey of
the Property at Seller's sole cost and expense.
3.2 INSPECTION PERIOD. Prior to the Decision Date, Buyer shall
have the opportunity and sole responsibility to make such investigations
and studies of the Property, at its sole cost and expense, as it deems
necessary in its sole discretion. Pursuant to and subject to the
requirements of SECTION 3.5 of this Agreement, Buyer may enter onto the
Property for the purpose of conducting its inspection (the "Inspection") of
the Property; provided, however, without first obtaining Seller's prior
written consent, Buyer shall only conduct a visual inspection, with no
right to conduct any physical testing, boring, sampling or removal
(collectively "Physical Testing") of any portion of the Property. If Buyer
wishes to conduct any Physical Testing of the Property, Buyer shall submit
a work plan to Seller prior to the Decision Date for Seller's prior written
approval, which work plan Seller may modify, limit or disapprove in its
sole and absolute discretion. Prior to the Decision Date, Buyer may seek
ratification of the Agreement and the necessary authorization to complete
the transaction contemplated hereby from its general partner's Board of
Directors. If, on the basis of the review and the Inspection described in
this SECTION 3.2, Buyer determines in its sole discretion that the Property
is not suitable for Buyer's intended use, or Buyer is unable to secure the
approval of its general partner's Board of Directors, then on or before the
Decision Date, Buyer may terminate this Agreement in accordance with
SECTION 3.3 below. Buyer's failure to provide such notice on or before the
Decision Date shall constitute Buyer's approval of the aforementioned items
and of condition of the Property, and the ratification of this Agreement
and authority to complete the transaction by Buyer's general partner's
Board of Directors.
3.3 BUYER'S TERMINATION . If Buyer elects to terminate this
Agreement in accordance with SECTION 3.1 OR 3.2 then, on or before the
Decision Date, Buyer shall give Seller and Escrow Holder written notice
that Buyer elects to terminate this Agreement. Buyer's failure to provide
such termination notice pursuant to SECTIONS 3.1 OR 3.2 on or before the
Decision Date, shall constitute Buyer's waiver of Buyer's right to
terminate this Agreement. In the event Buyer elects to terminate this
Agreement pursuant to this SECTION 3.3, Escrow Holder shall return to Buyer
any funds and interest thereon accrued while in Escrow and materials
previously placed in Escrow and remaining in Escrow; and neither party
shall thereafter have any further rights or obligations under this
Agreement unless expressly provided otherwise herein. Unless Buyer
terminates this Agreement as set forth above, or as otherwise provided in
Section 3.6 or unless Seller shall be in default of the terms of this
Agreement, the Deposit shall be non-refundable to Buyer.
3.4 NO PROCESSING . Prior to the Decision Date, Buyer shall not
make any application to any governmental agency, including without
limitation, HUD, for any permit, approval, license or other entitlement for
the Property or the use or development thereof, nor shall Buyer or Buyer's
Agents disclose to any governmental agency the results, findings, opinions
or conclusions of Buyer's Inspection or Physical Testing except as required
by law. If Buyer has advised Seller that it is terminating this Agreement
as a result of unsatisfactory results of its studies of the physical
condition of the Property, then Buyer shall deliver to Seller copies of any
studies received by Buyer relating to such physical condition.
3.5 ACCESS TO PROPERTY.
3.5.1 Subject to the rights of existing tenants of the Property
("Tenants"), whom Buyer hereby agrees not to interview or question without
having provided Seller with at least two (2) days prior written notice of
its intention to do so and an opportunity for Seller's representative to
accompany Buyer or its representative during such interview, Seller hereby
grants to Buyer a nonexclusive license to enter onto the Property solely
for the purpose of conducting Buyer's Inspection. Any Inspection work
shall be at the sole cost and expense of Buyer. The license created under
this SECTION 3.5.1 shall expire on the Closing Date or the Termination
Date. At least forty-eight (48) hours prior to any entry and Inspection,
Buyer shall: (a) deliver to Seller written notice of its intention to
enter the Property to conduct such Inspection and the proposed date and
time of such entry (Buyer may enter only on the dates and at the times
contained in such notices, and Seller shall have the right to have one or
more of its agents or representatives accompany Buyer and Buyer's Agents at
all times while Buyer or Buyer's Agents are on the Property); and
(b) provide Seller with sufficient evidence to show that Buyer and Buyer's
Agents, who are to enter upon the Property, are adequately covered by
policies of insurance issued by a carrier reasonably acceptable to Seller
insuring Buyer and Seller against any and all liability arising out of
Buyer's or Buyer's Agents' entry upon and Inspection of the Property,
including without limitation any loss or damage to the Property, with
coverage in the amount of not less than $1,000,000 per occurrence.
3.5.2 Buyer agrees to keep the Property free from any liens
arising out of any work performed, materials furnished or obligations
incurred by or on behalf of Buyer or Buyer's Agents with respect to any
Inspection or Physical Testing of the Property. If any such lien shall at
any time be filed, Buyer shall cause the same to be discharged of record
within twenty (20) days thereafter by satisfying the same or, if Buyer in
its discretion and in good faith determines that such lien should be
contested, by providing reasonable security to Seller in the form of cash,
letter of credit or bond.
3.5.3 Buyer shall, at its sole cost and expense, comply with all
applicable federal, state and local laws, statutes, rules, regulations,
ordinances, or policies in conducting the Inspection and the Physical
Testing.
3.5.4 Buyer hereby agrees to hold harmless, protect, defend and
indemnify, and hereby releases, Seller and its trustees, officers,
directors, employees, contractors, agents, subsidiaries and affiliates, and
its and their respective successors and assigns (collectively, the
"Indemnitees") and the Property from and against any and all claims,
demands, causes of action, suits, sums paid in settlement of any of the
foregoing, judgments, losses, damages, injuries, liabilities, penalties,
enforcement actions, fines, taxes, liens, encumbrances, costs or expenses
(including without limitation reasonable attorneys' fees, litigation,
arbitration and/or administrative proceeding costs, expert and consultant
fees and laboratory costs), whether direct or indirect, known or unknown
(collectively, "Claims"), arising out of, connected with or incidental to:
(a) any injuries to persons (including death) or property (real or
personal), or (b) any mechanics', workers' or other liens on the Property,
by reason of or relating to the work or activities conducted on the
Property by Buyer or Buyer's Agents. The provisions of this SECTION 3.5.4
shall not be limited in any way by any other terms of this Agreement,
including, but not limited to, SECTION 5.5 of this Agreement.
3.5.5 In no event shall Buyer or Buyer's Agents have the right
to place any materials or equipment on the Property (including, without
limitation, signs or other advertising material) until after the Closing
has occurred.
3.5.6 Buyer shall, at its sole cost and expense, clean up and
repair the Property, in whatever manner necessitated by or resulting from
entry thereon by Buyer or its agents, employees, representatives or
contractors ("Buyer's Agents"), so that the Property shall be returned to
the same condition that existed prior to Buyer's or Buyer's Agents' entry
thereon.
3.5.7 The parties agree to keep information, materials and data
in connection with the transaction (the "Information") confidential, and
each party represents, warrants and agrees that without the prior written
consent of the other, which consent may be withheld in the other's sole and
absolute discretion, they will: (a) keep the Information confidential,
unless such Information is in the public domain or such Information must be
disclosed under applicable law, or unless a party may have received such
Information from sources other than the other party; (b) use its best
efforts to safeguard the Information from unauthorized disclosure; and
(c) not disclose to any person (i) that the Information has been made
available to Buyer, (ii) that Buyer has inspected any portion of the
Information, (iii) that discussions with respect to the sale of the
Property are taking place, or (iv) any other facts with respect to such
discussions, including the status thereof. Each party shall indemnify the
other from and against any and all Claims resulting from, arising out of or
in connection with its breach of its obligations under this SECTION 3.5.7.
Notwithstanding the foregoing, if this Agreement is terminated, other than
as a result of Seller's default, this Section 3.5.7 shall not be applicable
to Seller thereafter.
3.6 ASSUMPTION OF FINANCING. In the event that Buyer has not
terminated this Agreement on or before the Decision Date, Buyer shall have
One Hundred Twenty (120) days after the Decision Date (the "Consent Date")
to secure the consent of PFC Corporation and the Federal Housing
Administration of the U.S. Department of Housing and Urban Development
("HUD") to the assumption of the Existing Financing. Buyer agrees that it
shall act diligently and in good faith by timely completing appropriate
applications and providing any documents and information requested by PFC
Corporation and/or HUD. Seller agrees to cooperate in good faith with
Buyer to obtain the necessary consents to the assumption of the Existing
Financing. Buyer shall be responsible for any and all costs associated
with the assumption, including without limitation, fees for a new
appraisal, any assumption fees, and any title endorsements. In the event
that Buyer has not obtained the required consents to the assumption of the
Existing Financing by the Consent Date and Seller has not elected to pay in
full the Existing Financing pursuant to Section 3.7, Buyer shall have the
right to terminate this Agreement by delivery of written notice of
termination on or before the Consent Date as Buyer's sole and exclusive
remedy. If Buyer elects to terminate this Agreement, pursuant to this
Section 3.6, Buyer and Seller agree that Escrow Holder shall be authorized
to release after the Consent Date the ▇▇▇▇▇▇▇ Money and any interest
thereon to Buyer upon receipt of Buyer's certificate stating that Buyer has
terminated this Agreement pursuant to this Section 3.6. The Escrow Holder
shall notify Seller not less than 3 days prior to any such release. After
such termination, neither party shall have any further rights or
obligations under this Agreement unless expressly provided otherwise
herein. Buyer's failure to provide such termination notice pursuant to
this SECTION 3.6 on or before the Consent Date shall constitute Buyer's
waiver of its right to terminate this Agreement under this SECTION 3.6. In
the event that Buyer pays off the Existing Financing, Buyer shall be solely
responsible for any and all prepayment fees or penalties incurred in such
payoff.
If Buyer receives such
consent to the assumption of the Existing Financing and the other
conditions in Article 3 have been satisfied or waived, the Closing shall
occur ten (10) business days after such receipt, but in any event no later
than one hundred twenty (120) days after the Decision Date. Buyer shall
give Seller notice of its receipt of such consent contemporaneously with
such receipt.
3.7 SELLER'S PAYMENT OF EXISTING LOAN. On or prior to three (3)
business days after the Decision Date, Seller may give to Buyer and the
Escrow Holder notice of its irrevocable election to pay off in full the
Existing Financing from the proceeds of the Purchase Price. If Seller
gives the notice pursuant to this Section 3.7, (a) Seller shall at Closing
cause the Escrow Holder to pay in full from the proceeds of the Purchase
Price, the Existing Financing, including any prepayment fees or penalties
due on the Existing Financing (or, if at Closing, HUD has not yet issued
its consent to the prepayment of the Existing Financing, Seller shall cause
the Escrow Holder to hold in escrow after Closing such amounts as the Title
Company may require in order to omit or affirmatively insure over all
references to the Existing Financing from the Owner's title policy, such
amount to held by the Escrow Agent until HUD has consented to the
prepayment of the Existing Financing, at which time the Existing Financing
shall be paid in full), (b) a Rental Use Agreement in form acceptable to
HUD (the "Rent Use Agreement") recorded against title to the Project shall
become a Permitted Exception, (c) this Agreement shall not be terminable
under Section 3.6, and Section 3.6 shall no longer apply, (d) Buyer shall
not assume the Existing Financing, (e) the Agreement shall continue in full
force and effect and (f) the Closing Date shall be ten (10) business days
after delivery of Seller's notice under this Section 3.7 provided the other
conditions of Article 3 have been satisfied or waived. If Seller does not
give such notice pursuant to this Section 3.7, then Section 3.6 shall
apply.
4. ADDITIONAL AGREEMENTS OF THE PARTIES.
4.1 SELLER'S REPRESENTATIONS AND WARRANTIES . The words "to
Seller's knowledge" or other references in this Agreement or in any
certificate or other document delivered pursuant to this Agreement to
Seller's knowledge, means the actual knowledge of the Designated Persons
(as defined below), after Inquiry (as defined below), it being understood
that the Designated Persons shall not personally be liable for an
inaccurate or incomplete statement or information. The "Designated
Persons" are ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. "Inquiry" means that Seller
has delivered a copy of SECTION 4.1 of this Agreement to the Designated
Persons and this Agreement reflects the knowledge of said individuals with
respect to the matters covered by said representations and warranties. No
claim for a breach of representation or warranty of Seller shall be
actionable or payable if the breach in question results from or is based on
a condition, state of facts or other matter which was known to Buyer prior
to Closing.
Except as expressly provided herein, Seller's representations and
warranties in this Agreement shall not survive the Closing.
Seller hereby represents, warrants and covenants to and agrees with
Buyer as follows:
4.1.1 SELLER'S AUTHORITY . Seller has the power and authority
to own the Property and to consummate the transactions contemplated by this
Agreement. This Agreement and all instruments, documents and agreements to
be executed by Seller in connection herewith are, or when delivered shall
be, duly authorized, executed and delivered by Seller and are, or when
delivered shall be, valid, binding and enforceable obligations of Seller.
4.1.2 TITLE. Seller has good and insurable fee simple title to
the Property and has good title to the Personal Property free and clear of
all leases, liens and encumbrances, other than those revealed by the Title
Commitment and subject to the rights of the Tenants.
4.1.3 LEASES. To Seller's knowledge, (a) the rent roll ("Rent
Roll") attached as EXHIBIT D is true and correct in all material respects
as of the date thereof, (b) Seller is not materially in default in the
performance of any material covenant to be performed by the landlord under
the Leases and the Tenants under the Leases have no material claims or
offsets against Seller pursuant to the Leases, and (c) the copies of the
Leases delivered or to be delivered by Seller to Buyer are accurate and
complete copies of the Leases.
4.1.4 NON-FOREIGN STATUS. Seller is not a "foreign person" as
defined in Section 1445 of the Internal Revenue Code of 1986, as amended,
and the Income Tax Regulations thereunder.
4.1.5 SERVICE CONTRACTS. At the request of Buyer, Seller shall
terminate all service and maintenance contracts, which are terminable
without the payment of a premium, and all leasing or listing agreements
with brokers and property management agreements as of the Closing Date
(collectively, the "Service Contracts"). The copies of the Service
Contracts delivered or to be delivered by Seller to Buyer are accurate and
complete copies of the Service Contracts.
4.1.6 DOCUMENTS AND REPORTS. To Seller's knowledge, the
documents and reports listed on EXHIBIT C are not misleading in any
material respect with respect to the subject matter thereof; provided,
however, Seller makes no representation or warranty with respect to any
such document or report to the extent that any specialized education or
training (such as an engineering degree or training) is necessary in order
to conclude that such document or report is not misleading in any material
respect.
4.1.7 EXISTING FINANCING. Seller agrees to keep the Existing
Financing in good standing and otherwise to perform the covenants of the
mortgagor therein contained at all times prior to Closing. Seller shall
not modify or prepay the Existing Financing prior to Closing, and shall
deliver to Purchaser prior to Closing an appropriate estoppel letter or, if
Section 3.7 is applicable, a loan payoff letter from the holder of the
Existing Financing confirming the outstanding balance as of the Closing
Date (the "Outstanding Balance").
4.1.8 NO VIOLATIONS. Seller has not received a written notice
from any governmental agency that the Project is in violation of any
applicable law, ordinance, rule, regulation or code. To Seller's
knowledge, there are no violations of any applicable law, ordinance, rule,
regulation or code with respect to the Project which have not been cured.
4.1.9 ENVIRONMENTAL MATTERS. (a) Seller has not received a
written notice from any governmental agency that any such agency has
determined or is claiming that there is a violation of any applicable
environmental laws, ordinances or regulations, (b) to Seller's knowledge,
there are no underground storage tanks on the Project, and (c) to Seller's
knowledge, with respect to the Project and during Seller's ownership of the
Project, Seller has not used, transported or disposed of any Hazardous
Material (as defined below) except in accordance with applicable laws,
ordinances and regulations.
"Hazardous Material(s)" means any chemical, substance, material,
controlled substance, object, condition, waste, living organisms or
combination thereof which is or may be hazardous to human health or safety
or to the environment due to its radioactivity, ignitability, corrosivity,
reactivity, explosivity, toxicity, carcinogenicity, mutagenicity,
phytotoxicity, infectiousness or other harmful or potentially harmful
properties or effects, including, without limitation, petroleum
hydrocarbons and petroleum products, lead (except as disclosed in the Aspen
Environmental, Inc. Lead Based Paint Inspection and Analysis Report dated
March 18, 1996 and Lead Based Paint Clearance Sampling Report dated August
29, 1996), asbestos, radon, polychlorinated biphenyls (PCBs) and all of
those chemicals, substances, materials, controlled substances, objects,
conditions, wastes, living organisms or combinations thereof which are now
or become in the future listed, defined or regulated in any manner by any
federal, state or local law based upon, directly or indirectly, such
properties or effects.
4.2 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby
represents, warrants and covenants to and agrees with Seller as follows:
4.2.1 BUYER'S INVESTIGATION. Except as explicitly set forth
herein: (a) there are no representations or warranties of any kind
whatsoever, express or implied, made by Seller in connection with this
Agreement, the purchase of the Property by Buyer, the physical condition of
the Property or whether the Property complies with applicable laws or is
appropriate for Buyer's intended use; (b) on or prior to the Decision Date,
Buyer will have (or will have chosen not to have) fully investigated the
Property and all matters pertaining thereto except for any matters arising
after the Decision Date; (c) except as set forth in Section 4.1, Buyer is
not relying on any statement or representation of Seller, its agents or its
representatives nor on any information supplied by Seller, its agents or
its representatives; (d) Buyer, in entering into this Agreement and in
completing its purchase of the Property, is relying entirely on its own
investigation of the Property based on its extensive experience in and
knowledge of real property in the areas where the Property is located; (e)
Buyer's decision of whether to purchase the Property on the terms and
conditions hereof shall be made solely and exclusively in reliance on
Buyer's own review, inspection and investigation of the Property and of
materials, documents, information and studies relating to the Property
(including, without limitation, Buyer's Inspection or Physical Testing);
and (f) except as set forth herein, Buyer shall purchase the Property in
its "AS IS, WHERE IS" condition as of the date of Closing.
4.2.2 AUTHORITY. Buyer has the power and authority to own the
Property and to consummate the transactions contemplated by this Agreement,
subject to the approval contemplated in Section 3.2. This Agreement and
all instruments, documents and agreements to be executed by Buyer in
connection herewith are or when delivered shall be duly authorized,
executed and delivered by Buyer and are valid, binding and enforceable
obligations of Buyer. Each individual executing this Agreement on behalf
of Buyer represents and warrants to Seller that he or she is duly
authorized to do so.
4.2.3 CONSENTS. Buyer is not required to obtain any consents or
approvals to consummate the transactions contemplated in this Agreement,
except for the approval contemplated in Section 3.2 and Section 3.6.
4.2.4 SINGLE PURPOSE ENTITY. Buyer is a limited partnership
formed in the State of New York. At Buyer's option or if required for the
approvals under Section 3.6, Buyer shall direct Seller to convey the
Property to an affiliate of Buyer who is controlled by Buyer, whose sole
purpose is to own, operate, and manage the Property (the "Grantee"). Buyer
agrees to provide any reasonable documentation required to evidence
Grantee's status as a single purpose entity formed solely for the purpose
of acquiring the Property.
4.2.5 PRIOR HUD TRANSACTION. Neither Buyer nor any person,
controlling or controlled by or under common control with Buyer has (a)
defaulted on any HUD loans to which it is now or may previously have been a
party (b) filed for bankruptcy in connection with any property subject to a
HUD loan or (c) committed fraud upon HUD.
4.3 REAFFIRMATION . The representations and warranties of Seller
and Buyer set forth in SECTIONS 4.1 and 4.2, respectively, are true and
correct as of the date of this Agreement and shall be true and correct as
of the Closing. The Closing shall constitute Seller's and Buyer's
reaffirmation of those representations and warranties as of the Closing.
Each party shall be entitled to rely upon the other's representations and
warranties, notwithstanding any inspection or investigation of the Property
which was made or could have been made by the other.
4.4 SURVIVAL. Except as expressly provided herein, Buyer's
representations and warranties in this Agreement shall not survive the
Closing.
4.5 CASUALTY; CONDEMNATION . If, prior to Closing, Seller has
actual knowledge that all of the Property or any material portion thereof
is destroyed or damaged or if the Property or any material portion thereof
shall be subjected to a bona fide threat of condemnation or becomes the
subject of any proceedings, judicial, administrative or otherwise, with
respect to the taking by eminent domain or condemnation, Seller shall
notify Buyer thereof within a reasonable time after receipt by Seller of
such actual notice thereof but in any event prior to Closing. In such
event, Buyer shall have the option to be exercised in writing written 30
days after such notice to: (i) terminate this Agreement upon written
notice to Seller, in which event the Deposit shall be returned to Buyer,
and, thereafter this Agreement shall be deemed to be null, void and of no
further force and effect; or (ii) accept title to the Property with no
adjustment of the Purchase Price, and upon the Closing, Seller shall
assign, transfer and set over to Buyer all of the right, title and interest
of Seller in and to any awards that have been or that may thereafter be
made for such taking, and Seller shall assign, transfer and set over to
Buyer any insurance proceeds that may have been or that may thereafter be
made for such damage or destruction, giving Buyer a credit at Closing for
any deductible under such policies. If written notice is not given by
Buyer within such time, Buyer shall be deemed to have elected (ii) above.
In the event an immaterial part of the Property is damaged, destroyed
or taken, this Agreement shall remain in full force and effect with no
adjustment of the Purchase Price, and upon the Closing, Seller shall
assign, transfer and set over to Buyer all of the right, title and interest
of Seller in and to any awards that have been or that may thereafter be
made for such taking, and Seller shall assign, transfer and set over to
Buyer any insurance proceeds that may have been or that may thereafter be
made for such damage or destruction, giving Buyer a credit at Closing for
any deductible under such policies.
For purposes of this Section, a "material portion" shall mean a
portion whose fair market value is not less than One Million Dollars
($1,000,000).
4.6 Intentionally Omitted.
4.7 INDEMNITY . Buyer agrees to hold harmless, indemnify, protect
and defend Seller from and against any and all claims whether direct or
indirect, known or unknown, arising out of, related in any way to, or
resulting from or in connection with the Property occurring after the
Closing (except to the extent and only to the extent such claims arise from
any act, conduct or omission of Seller), or in any way related to or
arising from any act, conduct, omission, contract or commitment of Buyer
and/or Buyer's Agents, or resulting from any inaccuracy in or breach of any
representation or warranty of Buyer or resulting from any breach or default
by Buyer under this Agreement. In the event Seller receives notice of a
claim against which it is entitled to indemnification pursuant to this
SECTION , Seller shall give written notice thereof to Buyer. Buyer shall
immediately thereupon take such measures as may be reasonably required to
properly and effectively defend such claim with counsel approved in writing
in advance by Seller. If Buyer fails to properly and effectively defend
such claim, then Seller may defend such claim with counsel of its own
choosing at Buyer's cost and expense. The provisions of this SECTION
shall survive the Closing Date.
Seller agrees to hold harmless, indemnify, protect and defend Buyer
from and against any and all claims whether direct or indirect, known or
unknown, arising out of, related in any way to, or resulting from or in
connection with the Property occurring before the Closing (except to the
extent and only to the extent such claims arise from any act, conduct or
omission of Buyer), or in any way related to or arising from any act,
conduct, omission, contract or commitment of Seller, or resulting from any
inaccuracy in or breach of any representation or warranty of Seller or
resulting from any breach or default by Seller under this Agreement. In
the event Buyer receives notice of a claim against which it is entitled to
indemnification pursuant to this SECTION , Buyer shall give written notice
thereof to Seller. Seller shall immediately thereupon take such measures
as may be reasonably required to properly and effectively defend such claim
with counsel approved in writing in advance by Buyer. If Seller fails to
properly and effectively defend such claim, then Buyer may defend such
claim with counsel of its own choosing at Seller's cost and expense. The
provisions of this SECTION shall survive the Closing Date.
4.8 OPERATION OF THE PROJECT . Seller agrees to operate the Project
in the ordinary course of business and with all due regard to the proper
maintenance and repair of the Property, including without limitation, (a)
maintaining hazard and liability insurance policies on the Property, and
(b) (i) executing any additional leases affecting the Project, (ii)
amending, modifying, renewing, extending or terminating any of the Leases,
or (iii) consenting to any assignment or sublease requested by any Tenant
under any of the Leases. Seller agrees to provide Buyer with copies of any
new leases, amendments, terminations, assignments or subleases entered into
after the Acceptance Date and prior to Closing.
Prior to Closing, Seller agrees to use reasonable good faith efforts
to cause to be filed a petition for tax division covering PIN ▇▇-▇▇-▇▇▇-▇▇▇
and 06-07-107-002 (the "Combined Parcels"), which PINs affect portions of
the Land and other property not the subject of this Agreement. If filed and
accepted by the ▇▇▇▇ County Assessor on or before October 31, 2000, such
division shall be effective January 1, 2001 for the 2001 real estate taxes
payable in 2002. Seller shall pay all costs and expenses, including
attorneys' fees, incurred in connection with the filing of such petition.
Seller agrees to indemnify and hold Buyer harmless from any and all claims
for reimbursement of real estate taxes (and interest thereon) which were
paid by any third party on behalf of Seller and which relate to the
portions of the Combined Parcels which were owned by Seller. The indemnity
in this Section 4.8 shall survive Closing.
5. CLOSING.
5.1.1 At Closing, Seller shall deliver:
(a) A special warranty deed conveying the Property to Buyer
(the "Deed") subject to the exceptions set forth in the Title Commitment
and, if applicable, the Permitted Exception under Section 3.7 and, if the
Existing Financing is paid pursuant to Section 3.7, deleting title
exceptions securing the Existing Financing.
(b) An affidavit or qualifying statement which satisfies the
requirements of Section 1445 of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder (the "Non-Foreign Affidavit").
(c) Two original counterparts of a ▇▇▇▇ of sale and assignment
(the "▇▇▇▇ of Sale"), duly executed by Seller, assigning and conveying to
Buyer all of Seller's right, title and interest in and to the Personal
Property. The ▇▇▇▇ of Sale shall be in the form of EXHIBIT F attached
hereto.
(d) Two original counterparts of an assignment and assumption
agreement (the "Assignment and Assumption Agreement") duly executed by
Seller assigning all of Seller's right, title and interest in and to the
Leases, security deposits and in and to all warranties applicable to the
Project, if any. The Assignment and Assumption Agreement shall be in the
form of EXHIBIT "G" attached hereto.
(e) Two original counterparts of an assignment and assumption
agreement (the "Assignment and Assumption of Service Contracts") duly
executed by Seller assigning all of Seller's right, title and interest in
and to the Service Contracts. The Assignment and Assumption of Service
Contracts shall be in the form of EXHIBIT "H" attached hereto.
(f) Such documents as may be required by PFC Corporation and
HUD to evidence the assumption of the Existing Financing or, if applicable,
to pay in full the Existing Financing pursuant to Section 3.7.
(g) Such other documents as may be reasonably required by the
Title Company, in a form reasonably acceptable to Seller (provided,
however, in no event shall Seller be obligated to indemnify the Title
Company or Buyer from or against any claims except as may be set forth
herein).
(h) Copies of the personnel files of all employees employed at
the Property and becoming employees of Buyer after the Closing.
(i) A termination of any management agreements relating to the
Property and a termination of any Service Contracts which by their terms
are terminable without premium and which Buyer elects not to assume.
(j) A current 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 (with
interest as required by applicable law or the Leases).
5.1.2 At Closing, Buyer shall deliver:
(a) Funds in accordance with the provisions of SECTION 1.3.
(b) Two original counterparts of the ▇▇▇▇ of Sale duly executed
by Buyer.
(c) Two original counterparts of the Assignment and Assumption
Agreement duly executed by Buyer.
(d) Two original counterparts of the Assignment and Assumption
of Service Contracts duly executed by Buyer.
(e) Such documents as may be required by PFC Corporation and
HUD to evidence the assumption of the Existing Financing unless the
Existing Financing is paid pursuant to Section 3.7.
5.1.3 Seller and Buyer shall each deliver such other instruments
and funds as are reasonably required by Escrow Holder or otherwise required
to close Escrow and consummate the sale of the Property in accordance with
the terms of this Agreement, including but not limited to documents
required under SECTION 5.4.1.
5.2 PRORATIONS.
5.2.1 All revenues, including without limitation, rentals,
prepaid rentals and prepaid payments (collectively, "Rent"), shall be
prorated on the basis that Buyer shall receive a credit for all Rent which
Seller has actually received before the Closing which is allocable to the
period after the Closing and for all security deposits held by Seller
(including interest thereon, as required by law). Seller shall not receive
a credit for any Rent Seller has not received as of the Closing which is
allocable to the period prior to the Closing. If, after Closing, Buyer
collects any Rent applicable to periods prior to Closing, such Rent shall
first be applied to Rent due for the current period, if any, and the
balance shall be promptly paid by Buyer to Seller. If, after Closing,
Seller collects any Rent applicable to rental periods after the Closing,
Seller shall promptly pay the same to Buyer. For such purposes, the period
for which Rent is applicable shall be the one designated in writing by the
person paying such Rent or, if there is no such designation, the Rent shall
be applied first to Rent due for the current period, if any, with the
balance applied in the inverse order of the Rent payments due from such
Tenant.
5.2.2 All expenses, including without limitation, utilities and
all other expenses to operate the Property shall be prorated as of the
Closing.
5.2.3 Real estate taxes shall be prorated at the Closing on the
basis of 100% of the most recent tax bills for the Property. Taxes will
then be reprorated upon receipt of actual bills for the applicable periods
and the responsible party will promptly pay the difference to the other
party. This provision will survive Closing.
5.2.4 Unless the Existing Financing is paid as provided in
Section 3.7, an amount equal to payments of interest and deposits due under
the Existing Financing, including without limitation, the repair escrow,
the replacement reserve escrow fund, the real estate tax escrow, the hazard
insurance escrow, and the mortgage insurance escrow, shall be paid to
Seller at Closing.
5.2.5 With respect to any of Seller's employees that Buyer
chooses to hire, Seller agrees to pay those employees for any accrued
vacation or sick time they have earned prior to Closing.
5.2.6 All prorations under this SECTION 5.2 shall be adjusted,
if necessary, and completed after the Closing as soon as final information
becomes available. Seller and Buyer agree to cooperate and use their best
efforts to complete such prorations no later than sixty (60) days (except
with respect to real estate taxes) after the Closing Date.
5.2.7. If the Existing Financing is to be paid in full pursuant
to Section 3.7, the Escrow Holder shall pay the Existing Financing from the
sums otherwise payable to Seller hereunder.
5.3 PAYMENT OF CLOSING COSTS .
5.3.1 CLOSING COSTS BORNE BY SELLER. Seller shall bear and
Escrow Holder shall discharge on Seller's behalf out of the sums payable to
Seller hereunder: (a) all costs and expenses of the Owner's Policy (as
defined below) including, without limitation, any additional premium
charged for an extended coverage policy, (b) state and county transfer
taxes, (c) one-half of Escrow Holder's fee, (d) the cost of the Survey of
the Project, and (e) any
additional costs and charges customarily charged to sellers in accordance
with common practice in ▇▇▇▇ County, Illinois.
5.3.2 CLOSING COSTS BORNE BY BUYER. Buyer shall deposit with
Escrow Holder for disbursement by Escrow Holder: (a) municipal transfer
taxes, if any, (b) all costs associated in obtaining the consent of PFC
Corporation and HUD in connection with the assignment of the Existing
Financing or in prepaying the Existing Financing, (c) one-half of Escrow
Holder's fee, (d) the recording fees required in connection with the
transfer of the Property to Buyer, and (e) any additional charges
customarily charged to buyers in accordance with common practice in ▇▇▇▇
County, Illinois.
5.4 CLOSING OF ESCROW.
5.4.1 Pursuant to Section 6045 of the Internal Revenue and
Taxation Code, Escrow Holder shall be designated the "closing agent"
hereunder and shall be solely responsible for complying with the tax reform
act of 1986 with regard to reporting all settlement information to the
Internal Revenue Service.
5.4.2 Escrow Holder shall hold the Closing on the Closing Date
if: (i) it has received in a timely manner all the funds and materials
required to be delivered into Escrow by Buyer and Seller; and (ii) it has
received assurances satisfactory to it that, effective as of the Closing,
the Title Company will issue to Buyer its extended coverage title insurance
policy in the amount of the Purchase Price, insuring Buyer as the owner of
the Property, subject only to the exceptions in the Title Commitment, the
Permitted Exception under Section 3.7, if applicable, and the Existing
Financing unless paid in full pursuant to Section 3.7 (the "Owner's
Policy").
5.4.3 To close the Escrow, Escrow Holder shall:
(a) Cause the Deed to be recorded and thereafter mailed to
Buyer, and deliver the Owner's Policy, ▇▇▇▇ of Sale, Assignment and
Assumption Agreement and Non-Foreign Affidavit to Buyer.
(b) Deliver to Seller the ▇▇▇▇ of Sale, the Assignment and
Assumption Agreement and, by wire transfer of federal funds, funds in the
amount of the Purchase Price, less the amount of the Deposit to the extent
released to Seller and plus or less any net debit or credit to Seller by
reason of the prorations and allocations of closing costs provided for in
this Agreement.
(c) Unless the Existing Financing is paid in full as
provided in Section 3.7, cause the appropriate documents evidencing the
assumption of the Existing Financing to be recorded and delivered to PFC
Corporation and HUD, as appropriate.
(d) If Seller has executed its rights under Section 3.7,
pay in full the Existing Financing.
5.5 LIQUIDATION DAMAGE s. Buyer and Seller agree that in the event
of a material default or breach hereunder by Buyer (including, without
limitation, any default or breach by Buyer which results in the failure of
escrow to Close), the damages to Seller would be extremely difficult and
impracticable to ascertain, and that therefore, in the event of a material
default or breach hereunder by Buyer, if occurring after the Decision Date,
the sum of the Deposit plus all interest accrued thereon is a reasonable
estimate of the damages to Seller, such damages including costs of
negotiating and drafting of this Agreement, costs of cooperating in
satisfying conditions to Closing, costs of seeking another buyer upon
Buyer's default, opportunity costs in, and carrying cost associated with,
keeping the Property out of the market place, and other costs incurred in
connection herewith. Accordingly, Buyer and Seller agree that, except for
any damages, costs and expenses incurred in connection with or resulting
from Buyer's default or breach of its obligations under SECTIONS 3.5.4,
3.5.7, 4.2, 4.7, 6.13, 6.14 AND 6.16 (which damages, costs and expenses
shall survive any Closing or termination of this Agreement and are not
limited by this SECTION 5.5), receipt and retention of the specified sum
shall be the sole damages of Seller in the event of any breach or default
by Buyer hereunder.
5.6 POSSESSION . Subject to the Leases, possession of the Property
(including, without limitation, all keys to the Property in Seller's
possession) shall be delivered to Buyer upon Closing.
6. GENERAL PROVISIONS.
6.1 COUNTERPARTS . This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
6.2 ENTIRE AGREEMENT . This Agreement contains the entire
integrated agreement between the parties respecting the subject matter of
this Agreement and supersedes all prior and contemporaneous understandings
and agreements, whether oral or in writing, between the parties respecting
the subject matter of this Agreement. There are no representations,
agreements, arrangements or understandings, oral or in writing, between or
among the parties to this Agreement relating to the subject matter of this
Agreement which are not fully expressed in this Agreement. The terms of
this Agreement are intended by the parties as a final expression of their
agreement with respect to those terms and they may not be contradicted by
evidence of any prior agreement or of any contemporaneous agreement. The
parties further intend that this Agreement constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever
may be introduced in any judicial proceeding involving this Agreement.
6.3 LEGAL ADVICE; NEUTRAL INTERPRETATION; HEADINGS . Each party has
received independent legal advice from its attorneys with respect to the
advisability of executing this Agreement and the meaning of the provisions
hereof. The provisions of this Agreement shall be construed as to their
fair meaning, and not for or against any party based upon any attribution
to such party as the source of the language in question. Headings used in
this Agreement are for convenience of reference only and shall not be used
in construing this Agreement.
6.4 CHOICE OF LAW . This Agreement shall be governed by the laws of
the State of Illinois.
6.5 SEVERABILITY . If any term, covenant, condition or provision of
this Agreement, or the application thereof to any person or circumstance,
shall to any extent be held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Agreement, or the application thereof to
any person or circumstance, shall remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby.
6.6 WAIVER OF COVENANTS, CONDITIONS OR REMEDIES. The waiver by one
party of the performance of any covenant, condition or promise under this
Agreement shall not invalidate this Agreement nor shall it be considered a
waiver by it of any other covenant, condition or promise under this
Agreement. The waiver by either or both parties of the time for performing
any act under this Agreement shall not constitute a waiver of the time for
performing any other act or an identical act required to be performed at a
later time. The exercise of any remedy provided in this Agreement shall
not be a waiver of any consistent remedy provided by law, and the provision
in this Agreement for any remedy shall not exclude other consistent
remedies unless they are expressly excluded.
6.7 EXHIBITS . All exhibits to which reference is made in this
Agreement are deemed incorporated in this Agreement, whether or not
actually attached.
6.8 AMENDMENT . This Agreement may be amended at any time by the
written agreement of Buyer and Seller. All amendments, changes, revisions
and discharges of this Agreement, in whole or in part, and from time to
time, shall be binding upon the parties despite any lack of legal
consideration, so long as the same shall be in writing and executed by the
parties hereto.
6.9 RELATIONSHIP OF PARTIES . The parties agree that their
relationship is that of seller and buyer, and that nothing contained herein
shall constitute either party the agent or legal representative of the
other for any purpose whatsoever, nor shall this Agreement be deemed to
create any form of business organization between the parties hereto, nor is
either party granted any right or authority to assume or create any
obligation or responsibility on behalf of the other party, nor shall either
party be in any way liable for any debt of the other.
6.10 NO THIRD PARTY BENEFIT . This Agreement is intended to benefit
only the parties hereto and no other person or entity has or shall acquire
any rights hereunder.
6.11 TIME OF THE ESSENCE . Time shall be of the essence as to all
dates and times of performance, whether contained herein or contained in
any escrow instructions to be executed pursuant to this Agreement, and all
escrow instructions shall contain a provision to this effect.
6.12 FURTHER ACTS . Each party agrees to perform any further acts
and to execute, acknowledge and deliver any documents which may be
reasonably necessary to carry out the provisions of this Agreement.
6.13 NO RECORDATION . Buyer shall not record this Agreement, any
memorandum of this Agreement, any assignment of this Agreement or any other
document which would cause a cloud on the title to the Property.
6.14 ASSIGNMENT . Buyer shall not assign Buyer's rights or delegate
its obligations hereunder without the prior written consent of Seller in
each instance, which consent Seller may withhold in Seller's sole and
absolute discretion, and any such assignment or delegation without the
prior written consent of Seller shall be null and void and the purported
assignee shall not have any rights hereunder. Notwithstanding anything to
the contrary herein, Buyer shall have the right to assign this Agreement,
upon providing Seller with prior written notice, to Grantee. Subject to
the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties to this Agreement.
Buyer's failure to obtain such consent or the change of control of Grantee
shall constitute a material breach hereunder, and Seller may terminate this
Agreement with delivery of prior written notice to Buyer.
6.15 ATTORNEYS' FEES . In the event of any litigation involving the
parties to this Agreement to enforce any provision of this Agreement, to
enforce any remedy available upon default under this Agreement, or seeking
a declaration of the rights of either party under this Agreement, the
prevailing party shall be entitled to recover from the other such
attorneys' fees and costs as may be reasonably incurred, including the
costs of reasonable investigation, preparation and professional or expert
consultation incurred by reason of such litigation. All other attorneys'
fees and costs relating to this Agreement and the transactions contemplated
hereby shall be borne by the party incurring the same.
6.16 BROKER . Buyer and Seller each represent and warrant to the
other that, except for ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Incorporated ("Broker"),
(a) they have not dealt with any brokers or finders in connection with the
purchase and sale of the Property, and (b) insofar as such party knows, no
broker or other person is entitled to any commission or finder's fee in
connection with the purchase and sale of the Property. Seller agrees that
it shall pay all amounts owing to the Broker at Closing. Seller and Buyer
each agree to indemnify and hold harmless the other against any Claim
incurred by reason of any brokerage fee, commission or finder's fee which
is payable or alleged to be payable to any broker or finder, other than the
Broker, because of any agreement, act, omission or statement of the
indemnifying party. The provisions of this SECTION 6.16 shall not be
limited in any way by any terms of this Agreement including, but not
limited to, SECTION 5.6 of this Agreement.
6.17 MANNER OF GIVING NOTICE . All notices and demands which either
party is required or desires to give to the other shall be given in writing
by personal delivery, express courier service, certified mail, return
receipt requested, or by telecopy followed by next day delivery of a hard
copy to the address or telecopy number set forth below for the respective
party, provided that if any party gives notice of a change of name, address
or telecopy number, notices to that party shall thereafter be given as
demanded in that notice. All notices and demands so given shall be
effective upon receipt by the party to whom notice or a demand is being
given. Any notice or other communication under this Agreement may be given
on behalf of a party by the attorney for such party.
To Buyer:
Home Properties of New York, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: Home Properties of New York, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Seller:
Blackhawk Apartments Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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6.18 SURVIVAL . Except as otherwise provided in SECTION 4.1, the
provisions of this Agreement shall survive the Closing and the consummation
of the transactions contemplated by this Agreement or the termination of
this Agreement for any reason without the conveyance of the Property to
Buyer.
6.19 MUTUAL WAIVERS OF JURY TRIAL AND CERTAIN DAMAGES . Seller and
Buyer each hereby expressly, irrevocably, fully and forever releases,
waives and relinquishes any and all right to trial by jury and all right to
receive punitive, exemplary and consequential damages from the other (or
any past, present or future board member, trustee, director, officer,
employee, agent, representative, or advisor of the other) in any Claim in
which Seller and Buyer are parties, which in any way (directly or
indirectly) arises out of, results from or relates to any of the following,
in each case whether now existing or hereafter arising and whether based on
contract or tort or any other legal basis: This Agreement; any past,
present or future act, omission, conduct or activity with respect to this
Agreement; any transaction, event or occurrence contemplated by this
Agreement; the performance of any obligation or the exercise of any right
under this Agreement; or the enforcement of this Agreement. Seller and
Buyer each agrees that this Agreement constitutes written consent that
trial by jury shall be waived in any such claim, demand, action, suit,
proceeding or other cause of action and agrees that each shall have the
right at any time to file this Agreement with the clerk or judge of any
court in which any such Claim may be pending as statutory written consent
to waiver of trial by jury.
6.20 LIKE-KIND EXCHANGE. Seller desires to exchange other property
of like kind and qualifying use within the meaning of Section 1031 of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder, for fee title in the Property which is the subject of this
Agreement. Seller expressly reserves the right to assign its rights, but
not its obligations, hereunder to a Qualified Intermediary as provided in
IRS Reg. 1.1031 (k)-1(g)(4) on or before the date of the Closing.
Buyer agrees to cooperate with Seller's "Like Kind Exchange,"
provided that such exchange causes no delay in the Closing, and all costs
or expenses arising out of such exchange shall be the responsibility of
Seller. It is acknowledged and agreed between the parties that any delay in
Closing that affects Seller's ability to perform a Like-Kind Exchange will
not result in a breach of this Agreement and Seller will perform in
accordance herewith and Buyer shall have no responsibility economic or
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year written below, and this Agreement is deemed effective
as of the day and year written below Seller's signature.
SELLER:
BLACKHAWK APARTMENTS LIMITED PARTNERSHIP, an
Illinois limited partnership
By: FDF Corporation, an Illinois
corporation
Its: General Partner
By:_______________________________
Name: ____________________________
Its:________________________________
Acceptance Date: _______________
BUYER:
HOME PROPERTIES OF NEW YORK, L.P., a New
York limited partnership
By: Home Properties of New York, Inc.,
a Maryland corporation
Its: General Partner
By:_______________________________
Name:_____________________________
Its:________________________________
Date: ______________
LIST OF EXHIBITS
Exhibit A - Property Description
Exhibit B - List of Financing Documents
Exhibit C - List of Documents and Reports
Exhibit D - Rent Roll
Exhibit E - Intentionally omitted
Exhibit F - ▇▇▇▇ of Sale and Assignment
Exhibit G - Assignment and Assumption Agreement
Exhibit H - Assignment and Assumption of Service Contracts