Exhibit 2.1
SECOND AMENDMENT TO CONTRACT OF SALE
THIS SECOND AMENDMENT TO CONTRACT OF SALE (this
"Amendment") made as of this 19th day of June, 1996, by and
between GOSHEN ASSOCIATES, a New York general partnership
("Carriage Seller"), GRAMATAN ASSOCIATES, a New York general
partnership and WAKEFIELD ASSOCIATES, a New York general
partnership (Gramatan Associates and Wakefield Associates
are herein collectively referred to as "Georgetown Seller"),
SCENIC GARDENS ASSOCIATES, a New York general partnership
("Lakeshore Seller"), and KINGSTON ASSOCIATES, a New York
general partnership ("Sunset Seller"), each having its
principal office at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (Carriage Seller, Georgetown Seller, Lakeshore
Seller and Sunset Seller shall be collectively referred to
herein as "Seller"), and HOME PROPERTIES OF NEW YORK, L.P.,
a New York limited partnership, having its principal office
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Buyer").
W I T N E S S E T H :
WHEREAS, Seller and Buyer have entered into a Contract of
Sale (the "Contract of Sale") dated as of May 1, 1996 with
respect to the sale and purchase of the Carriage Property,
the Georgetown Property, the Lakeshore Property and the
Sunset Property, as such capitalized terms are defined in
the Contract of Sale (the Carriage Property, the Georgetown
Property, the Lakeshore Property and the Sunset Property
shall be individually referred to herein as the "Property"
and collectively referred to herein as the "Properties");
WHEREAS, the parties entered into that certain Amendment to
Contract of Sale dated May 21, 1996, pursuant to which,
among other things, the parties agreed to a reduction of the
purchase price for the Properties and Buyer waived all
rights to terminate the Contract of Sale except as may be
expressly provided under paragraphs 13 and 15 of the
Contract of Sale (the "Contract of Sale as amended by the
Amendment to Contract of Sale shall be referred to herein as
the "Contract"); and
WHEREAS, Seller and Buyer have mutually agreed upon the
allocation of the purchase price among the four Properties
and are desirous of reducing such agreement to writing.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged,
Seller and Buyer hereby agree as follows:
1. The above recitals constitute a material part of this
Amendment and hereby are incorporated herein by this
reference as if more fully set forth herein.
2. Buyer and Seller hereby each agree that the Purchase
Price as defined in the Contract is allocated among the four
(4) Properties, as follows:
Page 1
Sunset Property $5,300,000.00
Carriage Property $4,350,000.00
Lakeshore Property $4,375,000.00
Georgetown Property $3,350,000.00
Total $17,375,000.00
3. Buyer hereby assigns to Sunset Garden Limited
Partnership, for no additional consideration, all of Buyer's
rights, interests and obligations under the Contract to
purchase the Sunset Property and Seller hereby consents to
such assignment. By executing this Amendment, Sunset Garden
Limited Partnership hereby agrees to assume all of Buyer's
obligations and liabilities under the Contract with respect
to the acquisition of the Sunset Property, including,
without limitation, the tax deferred exchange obligations
set forth in paragraph 32 of the Contract of Sale; provided,
however, that Buyer shall be jointly and severally liable
under the Contract for any and all obligations on the part
of Sunset Garden Limited Partnership to be performed.
4. Except as amended hereby, the Contract is hereby
ratified and confirmed by the parties hereto. In the event
of any conflict between the Contract and this Amendment,
this Amendment shall prevail and govern. This Amendment
shall be binding upon and shall inure to the benefit of
Buyer and Seller and their respective successors and
assigns.
IN WITNESS WHEREOF, this Amendment has been duly executed by
the parties hereto as of the date first above written.
SELLER:
GOSHEN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
GRAMATAN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
WAKEFIELD ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
Page 2
SCENIC GARDENS ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
KINGSTON ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
BUYER:
WITNESS HOME PROPERTIES OF NEW YORK, L.P.
By: By: Home Properties of New York, Inc., General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------ ---------------------_(Seal)
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Counsel Title: Vice President
WITNESS SUNSET GARDEN LIMITED PARTNERSHIP
By: By: Home Properties of New York, Inc., General Partner
By: Home Properties of New York, L.P., General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------ -----------------------------(Seal)
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Counsel Title: Vice President
Page 3
AMENDMENT TO CONTRACT OF SALE
THIS AMENDMENT TO CONTRACT OF SALE (this "Amendment")
made as of this 21st day of May, 1996, by and between GOSHEN
ASSOCIATES, a New York general partnership ("Carriage
Seller"), GRAMATAN ASSOCIATES, a New York general
partnership and WAKEFIELD ASSOCIATES, a New York general
partnership (Gramatan Associates and Wakefield Associates
are herein collectively referred to as "Georgetown Seller"),
SCENIC GARDENS ASSOCIATES, a New York general partnership
("Lakeshore Seller"), and KINGSTON ASSOCIATES, a New York
general partnership ("Sunset Seller"), each having its
principal office at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (Carriage Seller, Georgetown Seller, Lakeshore
Seller and Sunset Seller shall be collectively referred to
herein as "Seller"), and HOME PROPERTIES OF NEW YORK, L.P.,
a New York limited partnership, having its principal office
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Buyer").
W I T N E S S E T H :
WHEREAS, Seller and Buyer have entered into a Contract of
Sale (the "Contract of Sale") dated as of May 1, 1996 with
respect to the sale and purchase of the Carriage Property,
the Georgetown Property, the Lakeshore Property and the
Sunset Property, as such capitalized terms are defined in
the Contract of Sale (the Carriage Property, the Georgetown
Property, the Lakeshore Property and the Sunset Property
shall be individually referred to herein as the "Property"
and collectively referred to herein as the "Properties");
WHEREAS, pursuant to the Contract of Sale, Buyer was granted
a period of time (defined in the Contract of Sale as the
"Due Diligence Period") in order to inspect the Properties,
Seller's books and records pertaining to the Properties and
other information relating to the Properties, and a period
of time (defined in the Contract of Sale as the "Tax Credit
Period") in order to attempt to obtain the Eligibility
Letter, as such capitalized term is defined in the Contract
of Sale, with respect to the Sunset Property, all as
provided in paragraph 12 of the Contract of Sale;
WHEREAS, Buyer has notified Seller that it is now satisfied
with the Properties and is desirous of waiving all rights to
terminate the Contract of Sale, including without
limitation, all rights under paragraphs 4 and 12 of the
Contract of Sale to terminate the Contract of Sale, with
respect to all of the Properties (except as may be expressly
provided under paragraphs 13 and 15 of the Contract of Sale)
and shall deliver to Escrow Agent the Second Deposit (as
such capitalized terms are defined in the Contract of Sale)
pursuant to the terms of the Contract of Sale, provided this
Amendment is executed and delivered by the parties; and
WHEREAS, the parties hereto are desirous of reducing their
agreement to writing.
Page 1
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged,
Seller and Buyer hereby agree as follows:
1. The above recitals constitute a material part of this
Amendment and hereby are incorporated herein by this
reference as if more fully set forth herein.
2. Buyer and Seller hereby each agree that the Purchase
Price as defined and set forth in paragraph 2 of the
Contract of Sale is hereby reduced by Six Hundred Twenty
Five Thousand and 00/100 ($625,000.00) Dollars so that the
Purchase Price for the Properties is and shall be Seventeen
Million Three Hundred Seventy Five and 00/100
($17,375,000.00) Dollars.
3. Buyer hereby irrevocably and unconditionally waives any
and all rights to terminate the Contract of Sale, as amended
hereby (the Contract of Sale as amended hereby shall be
referred to herein as the "Amended Contract"), including
without limitation, all rights to terminate the Contract of
Sale under paragraphs 4 and 12 of the Contract of Sale with
respect to all of the Properties (except as may be expressly
provided in paragraphs 13 and 15 of the Contract of Sale).
The foregoing waiver of any and all rights to terminate
shall include, but is not limited to, the irrevocable and
unconditional waiver by Buyer of any and all rights of Buyer
to terminate the Contract of Sale under paragraph 12(b) with
respect to obtaining the Eligibility Letter for the Sunset
Property. The Buyer hereby understands and agrees that
Seller has agreed to the reduction in the Purchase Price as
set forth in paragraph 2 above only on the condition that
Buyer waive any and all of such rights to terminate the
Contract with respect to all of the Properties under the
Contract except as may be expressly provided in paragraphs
13 and 15 of the Contract of Sale. The Buyer shall deliver
to the Escrow Agent the Second Deposit (as such capitalized
terms are defined in the Contract of Sale) pursuant to the
terms of the Contract of Sale.
4. Buyer and Seller hereby agree that in the event either
Lender or both of the Lenders (as such capitalized terms are
defined in the Contract of Sale) charges, assesses and/or
imposes any assumption fees, prepayment premiums, prepayment
penalties, yield maintenance payments and/or any other
costs, expenses and/or charges, including without
limitation, attorneys' fees, costs, expenses and charges
(all of the foregoing shall be referred to herein
collectively, as "Assumption Fees") in connection with the
assumption of the loans (the "Loans") evidenced by the Loan
Documents (as such capitalized term is defined in the
Contract of Sale) by Buyer or any modification thereof
and/or conditions the granting of its or their consent to
the sale of the Properties by Seller to Buyer on the payment
of such Assumption Fees, Buyer and Seller hereby agree as
follows: Buyer and Seller each hereby agree to split all of
such Assumption Fees equally so that Buyer shall pay fifty
(50%) percent of all Assumption Fees and Seller shall pay
fifty (50%) percent of all Assumption Fees, provided,
however, Seller's obligation to pay fifty (50%) percent of
all such Assumption Fees as hereinabove provided shall be
limited to Fifty Thousand and 00/100 ($50,000.00) Dollars in
total. In the event the total amount of the Assumption Fees
exceeds One Hundred Thousand and 00/100 ($100,000.00)
Dollars, then in such event Buyer shall be obligated to pay
any and all Assumption Fees which are in excess of
Page 2
One Hundred Thousand and 00/100 ($100,000.00) Dollars in
addition to its 50% share of the said $100,000 portion of
the Assumption Fees. Any and all of such Assumption Fees
shall be paid by Seller and Buyer pursuant to the foregoing
terms at closing or earlier if either or both of such
Lenders shall otherwise require the same to be paid prior to
closing. Notwithstanding any of the foregoing, in the event
Buyer agrees to an assumption of the Loans (or Loan) and/or
modification of the Loan Documents for a term which is
longer than one (1) year from the date of closing, Buyer
shall pay any and all of such Assumption Fees which the
Lender or Lenders shall charge, assess and/or impose as a
result of the term or terms of the Loans (or Loan) being for
a period of longer than one (1) year. In connection with
the foregoing, Seller and Buyer hereby agree that:
(a). the last sentence of the first paragraph of subdivision
2(c) of the Contract of Sale is hereby deleted in its
entirety.
(b). the fourth (4th) sentence of the second (2nd) paragraph
of subdivision 2(c) of the Contract of Sale is hereby
deleted in its entirety.
5. Buyer and Seller hereby understand and agree that
paragraph 8 of the Contract of Sale shall be amended and
deemed hereby to be amended by deleting said paragraph 8 in
its entirety from the Contract of Sale and inserting in lieu
thereof the following:
"8. Date and Place of Closing. Settlement, the
delivery of the Deeds and all other "Closing Documents" (as
hereinafter defined) in exchange for the Purchase Price and
the closing of title (hereinafter referred to as the
"Closing") shall take place in escrow, by mail, at the
office of the Escrow Agent on the Closing date (except as
provided below). Buyer and Seller hereby agree that the
Closing date for all four (4) Properties shall be the later
of (i) July 1, 1996 and (ii) the date on which the Lenders
and Buyer execute and deliver all loan documents and
modifications to the Loan Documents which the Lenders shall
require in order to approve the assumption of the Loans by
Buyer, it being specifically understood and agreed that
Seller shall not be responsible for any delay in the Closing
caused by Buyer and/or the Lenders, however, Seller hereby
agrees that it will cooperate with Buyer and the Lenders in
good faith in order to obtain the Lenders' approval of the
assumption, and that the Closing and the Closing date shall
be subject to the following terms and conditions: (i) Seller
shall have the right to elect in its sole and absolute
discretion to extend the Closing date and to lease on a
triple net basis to Buyer one or more or all of the
Properties pursuant to a triple net lease (the "Lease") and
(ii) Seller shall make such election to lease to Buyer any
one, or more, or all of the Properties within five (5) days
of the Closing date. The Lease shall contain the following
terms and conditions and otherwise shall be in form and
substance mutually acceptable to both Seller and Buyer:
(i) The commencement of the Lease shall be the date on which
any of the Properties, for which Seller has not made such
election, shall close under the Amended Contract, or if
Seller shall make such election with respect to all such
Properties, then the
Page 3
commencement of the Lease shall be the
date on which the Closing would have occurred hereunder;
(ii) The term of the Lease shall be for a period of four (4)
months, subject to the right of Seller, in Seller's sole
discretion, to terminate the Lease at any time and from time
to time and to require Buyer to purchase such Property or
Properties (which are subject to the Lease) pursuant to the
terms of the Amended Contract to close in which event the
Closing date for such Property or Properties (hereinafter
the "Leased Property or the "Leased Properties") shall be at
any time (at Seller's election) within thirty (30) days of
the delivery of such notice to Buyer. If Seller does not
exercise such right to terminate the Lease for any of the
Leased Properties, the Closing date of the Leased Properties
shall occur on the day immediately following the expiration
of such four (4) month period;
(iii) Buyer shall deposit with the Escrow Agent (defined in
the Contract of Sale) upon the Lease execution the cash
portion of the Purchase Price (the "Cash Portion") pursuant
to paragraph 2(b)(ii) of the Contract of Sale, which Cash
Portion shall be either applied to the Purchase Price for
the Leased Properties at the closing therefor or, in the
event Buyer defaults under the Lease and/or the Amended
Contract for a period beyond any applicable notice and/or
grace period, Seller at its option shall have the right to
elect that the Cash Portion be paid to Seller as liquidated
damages (in addition to the Contract Deposit under the
Amended Contract) and to terminate the Lease and/or the
Amended Contract or Seller shall have the right at its
option to pursue any and all rights and remedies under the
Lease, at law or in equity, including without limitation,
specific performance of Buyer's obligations under the
Amended Contract. All interest earned on the Cash Portion
shall be payable to Seller in all instances (except as
provided below) and shall be paid to Seller at the time the
Cash Portion is paid to Seller pursuant to the terms hereof.
In the event that Seller defaults under the Amended Contract
for a period beyond any applicable notice and/or grace
period, the Escrow Agent shall return the Cash Portion, with
interest, to Buyer, and Buyer shall have the right to pursue
any and all rights and remedies under the Amended Contract,
at law or in equity in the event of such a default by
Seller;
(iv) All terms and obligations of Buyer under the Lease
shall be triple net to Seller so that the rent shall be
absolutely net to Seller and shall be in the amount of all
interest and principal due under the Loan Documents
encumbering the Leased Properties, it being understood and
agreed that Buyer shall receive a credit to the Purchase
Price at closing in the amount of any principal due under
the Loan Documents which was actually paid by Buyer to
Seller for payment under the Loan Documents. If as a result
of any act or omission of Buyer, the Lenders or Lender
impose or charge any default rates of interest, charges,
penalties, protective advances and/or any other impositions,
charges and/or expenditures, Buyer shall also pay as rent
any and all of the foregoing. Such net rent shall be
payable monthly to Seller in advance on the first day of
each and every calendar month during the term of the Lease.
Upon receipt of such payment from Buyer, Seller shall make
the corresponding payment due under the Loan Documents
pursuant to the terms thereof;
(v) All items to be adjusted under the Amended Contract of
Sale between the parties shall be so adjusted with respect
to the Leased Properties upon the commencement date of the
Lease, and thereafter Buyer shall be responsible at its sole
cost and expense for all operating and other costs with
respect to the Leased Properties, including without
Page 4
limitation, all real estate taxes, assessments, sewer, water
and electric charges, insurance premiums, and repair and/or
replacement costs and expenses in order to maintain the same
in good order and repair;
(vi) Buyer shall assume as of the commencement date of the
Lease all obligations of Seller as landlord under the Tenant
Leases, as same may have been modified;
(vii) Buyer shall not permit, cause, place and/or encumber
the Leased Properties or Buyer's leasehold interest therein
with any mortgages, security agreements, securitized
agreements and/or any other liens whatsoever; and
(viii) Seller shall not be obligated to cure, remove, bond
over or discharge any title exceptions which arise with
respect to any of the Leased Properties and which have been
caused directly or indirectly by Buyer or by its actions or
omissions.The Lease shall contain such additional terms all
of which shall be mutually acceptable to both parties
hereunder. Upon the Closing, the Escrow Agent shall release
the Deeds to Buyer for recordation (or to the Title Company
if Buyer so directs) upon Escrow Agent's receipt of the
Purchase Price in readily available Federal funds and upon
Buyer's assumption of the obligations represented by the
Loan Documents (as same may be amended)."
6. Except as amended hereby, the Contract of Sale is hereby
ratified and confirmed by the parties hereto. In the event
of any conflict between the Contract of Sale and this
Amendment, this Amendment shall prevail and govern. This
Amendment shall be binding upon an shall inure to the
benefit of Buyer and Seller and their respective successors
and assigns.
IN WITNESS WHEREOF, this Amendment has been duly executed by
the parties hereto as of the date first above written.
SELLER:
GOSHEN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
GRAMATAN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
WAKEFIELD ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
SCENIC GARDENS ASSOCIATES
Page 5
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
KINGSTON ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
BUYER:
WITNESS HOME PROPERTIES OF NEW YORK, L.P.
By: By: Home Properties of New York, Inc.
/s/ ▇▇▇▇▇▇▇ Crossed
---------------- -------------------------(Seal)
Name: Name: ▇▇▇▇▇▇▇ Crossed
Title: Title: Executive Vice President
Page 6
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") made as of this
1st day of May, 1996, by and between GOSHEN ASSOCIATES, a
New York general partnership ("Carriage Seller"), GRAMATAN
ASSOCIATES, a New York general partnership and WAKEFIELD
ASSOCIATES, a New York general partnership (Gramatan
Associates and Wakefield Associates are herein collectively
referred to as "Georgetown Seller"), SCENIC GARDENS
ASSOCIATES, a New York general partnership ("Lakeshore
Seller"), and KINGSTON ASSOCIATES, a New York general
partnership ("Sunset Seller"), each having its principal
office at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(Carriage Seller, Georgetown Seller, Lakeshore Seller and
Sunset Seller shall be collectively referred to herein as
"Seller"), and HOME PROPERTIES OF NEW YORK, L.P., a New York
limited partnership, having its principal office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Buyer").
W I T N E S S E T H :
Carriage Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase from Carriage Seller, all those
certain plots, pieces or parcels of land with the buildings
and improvements erected thereon, situate, lying and being
at Woodhill Drive in Goshen, in the County of Orange, New
York, being an apartment complex commonly known as Carriage
Hills Apartments and as more particularly described in
Exhibit A-1 annexed hereto and made a part hereof
(hereinafter referred to as the "Carriage Premises"), all
upon and subject to the terms and conditions herein.
Georgetown Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase from Georgetown Seller, all those
certain plots, pieces or parcels of land with the buildings
and improvements erected thereon, situate, lying and being
at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, in Cornwall, in the County of Orange,
New York, being an apartment complex commonly known as
Georgetown Estates and as more particularly described in
Exhibit A-2 annexed hereto and made a part hereof
(hereinafter referred to as the "Georgetown Premises"), all
upon and subject to the terms and conditions herein.
Lakeshore Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase from Lakeshore Seller, all those
certain plots, pieces or parcels of land with the buildings
and improvements erected thereon, situate, lying and being
at Route 9W North in Port Ewen in Ulster county, New York,
being an apartment complex commonly known as Lakeshore
Villas and as more particularly described in Exhibit A-3
annexed hereto and made a part hereof (hereinafter referred
to as the "Lakeshore Premises"), all upon and subject to the
terms and conditions herein.
Sunset Seller agrees to sell and convey to Buyer, and Buyer
agrees to purchase from Sunset Seller, all those certain
plots, pieces or parcels of land with the buildings and
improvements erected thereon, situate, lying and being at
Locust Street in Kingston in
Page 1
Ulster County, New York, being
an apartment complex commonly known as Sunset Garden
Apartments and as more particularly described in Exhibit A-4
annexed hereto and made a part hereof (hereinafter referred
to as the "Sunset Premises"), all upon and subject to the
terms and conditions herein.
The Carriage Premises, Georgetown Premises, Lakeshore
Premises and Sunset Premises shall sometimes be referred to
herein collectively or individually as the "Premises").
1. (a) Included in Sale: This sale includes all of
the following which are applicable to each Premises (which,
together with each such Premises, are hereinafter referred
to as the "Carriage Property", "Georgetown Property",
"Lakeshore Property" or "Sunset Property", respectively, and
collectively the Carriage Property, the Georgetown Property,
the Lakeshore Property and the Sunset Property shall be
referred to herein as the "Properties" or individually as
the "Property"):
(i) All right, title and interest of Seller in
and to the buildings, structures and improvements located
in, on or under the Premises; and
(ii) All right, title and interest of Seller, if
any, in and to any land lying in the bed of any street, road
or avenue opened or proposed, in front of or adjoining the
Premises; and
(iii) All right, title and interest of Seller in
and to all personal property, furniture, fixtures and
equipment now and hereafter located at the Premises as
described on the attached Exhibit A-5 (hereinafter referred
to as the "Personal Property") although Seller makes no
representation, warranty or guaranty whatsoever with respect
to the Personal Property; and
(iv) All right, title and interest of Seller in
and to all easements, rights-of-way, gores of land,
passages, sewer rights, waters, water courses, water rights
and powers and all estates, rights, titles, interests,
privileges, liberties, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or
pertaining to the Premises;
(v) All security deposits held by Seller pursuant
to any leases with tenants at the Premises, now or hereafter
made (such tenants being hereinafter referred to as
"Tenants" and such leases being hereinafter referred to as
"Tenant Leases") and any rents paid or payable pursuant to
any Tenant Leases for the period commencing with the
"Closing Date" (as hereinafter defined), subject, however,
to the terms and conditions hereof; and
(vi) All right, title and interest of Seller in
and to all Tenant Leases, permits, certificates, consents,
licenses and concessions of or relating to the possession,
use, occupancy or enjoyment of all or any portion of the
Premises, whether now existing or hereafter made; and
Page 2
(vii) All right, title and interest of Seller in
and to any and all contracts and agreements, written or
oral, expressed or implied, now or hereafter entered into or
arising, in connection with any matter related to the
Property including, without limitation, any and all service
contracts, repair agreements, warranty and guaranty rights,
contract deposits, ▇▇▇▇▇▇▇ money deposits and payments due
or to become due thereunder; and
(viii) All right, title and interest of Seller in
and to the trade name "Carriage Hill Apartments, "Georgetown
Estates", "Lakeshore Villas" and "Sunset Garden Apartments".
(b) Mortgages. Buyer hereby understands and agrees
that it is obligated hereunder to, and shall, purchase (i)
the Carriage Property subject to the Carriage Loan Documents
which evidence and/or secure an outstanding principal
indebtedness of $4,195,693.64 as of March 1, 1996, and (ii)
the Georgetown Property subject to the Georgetown Loan
Documents which evidence and/or secure an outstanding
principal indebtedness of $3,361,483.84 as of March 1, 1996,
and (iii) the Lakeshore Property subject to the Lakeshore
Loan Documents which evidence and/or secure an outstanding
principal indebtedness of $2,927,254.53 as of March 1, 1996,
and (iv) the Sunset Property subject to the Sunset Loan
Documents which evidence and/or secure an outstanding
principal indebtedness of $4,475,819.92 as of March 1, 1996.
The Carriage Loan Documents, Georgetown Loan Documents,
Lakeshore Loan Documents and Sunset Loan Documents are each
defined on Exhibit B attached hereto and made a part hereof.
Buyer further understands and agrees that the Carriage
Property, the Georgetown Property and the Lakeshore Property
plus a parcel of land not subject to this Contract located
at Journeys End in Yorktown, New York (the "Journey's End
Parcel") are each encumbered by collateral mortgages (as
defined in Exhibit B) so that each of the three loans with
Key Bank of New York is cross-collateralized via such
collateral mortgage which encumbers the other two Properties
and Journey's End. Buyer shall have no right, title or
interest with respect to Journey's End Parcel and this
Contract shall not be deemed to have created any such right,
title or interest therein. As a condition of Closing, the
Journey's End Parcel shall be released from the lien of the
mortgages or SMG Associates shall indemnify the Buyer from
and against any and all defaults which SMG Associates shall
cause under the Loan Documents.
The Carriage Loan Documents, the Georgetown Loan Documents,
the Lakeshore Loan Documents and the Sunset Loan Documents
shall be collectively or individually with respect to each
Property referred to herein as the "Loan Documents".
2. Purchase Price. The purchase price (hereinafter
referred to as the "Purchase Price") shall be Eighteen
Million and % ($18,000,000.00) Dollars, payable as follows:
(a) Deposit. Upon the execution and delivery of this
Contract, Buyer shall make a deposit (the "First Deposit")
in the amount of One Hundred Thousand and % ($100,000.00)
Dollars with The Law Office of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, located at
245 Saw Mill
Page ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Escrow Agent"). Upon the
expiration of the "Due Diligence Period" (as hereinafter
defined), Buyer shall make an additional deposit (the
"Second Deposit") in the amount of Three Hundred Thousand
and % ($300,000.00) Dollars with the Escrow Agent. The
First Deposit and the Second Deposit (the First Deposit and,
to the extent paid to Escrow Agent, the Second Deposit being
hereinafter referred to as the "Contract Deposit") shall be
made by check and shall be held in escrow by Escrow Agent in
a Federally insured, interest bearing account, with interest
payable to the party entitled to receive the Contract
Deposit pursuant to the terms of this Contract. The
Contract Deposit, together with all accrued interest
thereon, shall be applied to the Purchase Price at "Closing"
(as hereinafter defined) or if the Closing does not occur
shall be paid to Seller unless this Contract expressly
provides that it shall be paid to Buyer. If for any reason
the Closing does not occur and either party makes a written
demand upon the Escrow Agent for payment of the Contract
Deposit, the Escrow Agent shall give written notice to the
other party of such demand. If the Escrow Agent does not
receive a written objection from the other party to the
proposed payment within ten (l0) days after the giving of
such notice, the Escrow Agent is hereby authorized to make
such payment. If the Escrow Agent does receive such written
objection within such ten (l0) day period or if for any
other reason the Escrow Agent in good faith shall elect not
to make such payment, the Escrow Agent shall continue to
hold such amount until otherwise directed by written
instructions from the parties to this Contract or
disposition of the same has been directed by a final,
nonappealable court order or Escrow Agent may pay the
Contract Deposit into court in accordance with proper court
procedure. The parties acknowledge that the Escrow Agent
is acting solely as a stakeholder at their request and for
their convenience, that the Escrow Agent shall not be deemed
to be the agent of either of the parties, except as
expressly set forth herein, and that the Escrow Agent shall
not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith,
in willful disregard of this Contract or of any escrow
agreement or involving gross negligence. Both parties shall
jointly and severally reimburse and indemnify Escrow Agent
harmless from and against any and all loss, liability, costs
and expenses, including without limitation, reasonable
attorneys' fees and expenses as a result of its performance
of its duties and obligations under this Contract. Upon
making the delivery of the Contract Deposit and interest
earned thereon in the manner provided in this Contract,
Escrow Agent shall have no further liability hereunder. The
Escrow Agent joins in the execution of this Contract solely
for the purpose of acknowledging receipt of the First
Deposit and its agreement to hold the same pursuant to the
terms hereof.
(b) Balance at Closing. The balance of the Purchase
Price shall be paid by Buyer at the Closing, by:
(i) taking title to the Carriage Property subject
to and assuming all obligations and liabilities under and/or
with respect to the Carriage Loan Documents, taking title to
the Georgetown Property subject to and assuming all
obligations and liabilities under and/or with respect to the
Georgetown Loan Documents, taking title to the Lakeshore
Property subject to and assuming all obligations and
liabilities under and/or with respect to the Lakeshore Loan
Documents, and taking title to the Sunset Property subject
to and assuming all obligations and liabilities under and/or
with respect to the Sunset Loan Documents; and
(ii) by paying at Closing the estimated sum of
Two Million Six Hundred Thirty-Nine Thousand Seven Hundred
Forty-Eight and 07/100 ($2,639,748.07) Dollars, representing
the balance of the Purchase Price (after deducting the
Contract Deposit), subject to any credits and/or prorations
provided for in this Contract. Said payment shall
Page 4
be made by certified or cashier's check payable to Seller, or at
Seller's direction to Escrow Agent, for the benefit of
Seller and as agent for Seller, provided however, the amount
of said estimated sum shall be increased by the difference
between the actual outstanding principal balance of the debt
evidenced and/or secured by the Loan Documents affecting all
four (4) Properties on the date of Closing and the amount
declared in paragraphs 1(b)(i) through 1(b)(iv) above as
being the current outstanding principal indebtedness
evidenced and/or secured by the Loan Documents.
(c). Mortgage Assumption: It is specifically
understood and agreed that as a condition precedent to
Seller's respective obligations hereunder, Buyer shall and
shall be obligated hereunder to, assume in the name of
Buyer, each and every obligation evidenced and/or secured by
the Loan Documents affecting all four of the Properties, and
Seller shall be fully released from each and every
obligation evidenced and/or secured by such Loan Documents,
including without limitation, the obligation to repay the
indebtedness (or any portion thereof) evidenced and/or
secured by the Loan Documents. Seller shall be responsible
for all interest and other payments due under the Loan
Documents prior to the Closing Date, subject to proration as
herein provided. In connection therewith, Buyer hereby
agrees to execute any and all documents, instruments and
agreements which may be required by Key Bank of New York as
the lender under the Loan Documents affecting the Carriage
Property, Georgetown Property and the Lakeshore Property and
by Marine Midland Bank, N.A., as the lender under the Loan
Documents affecting the Sunset Property, in order to effect
such assumption by Buyer and such release of Seller. (Key
Bank of New York and Marine Midland Bank, N.A. shall be
individually referred to herein as the "Lender" and
collectively as the "Lenders"). Buyer shall, and hereby
agrees to, apply for credit approval within five (5) days
after the Effective Date of this Contract with both Lenders
and to furnish within such five (5) day period its most
recent financial statements and deliver to Lenders any other
information which the Lenders may request in order for the
Lenders to process the application and to approve the sale
of the Properties to Buyer and the assumption of the loans
by Buyer. Seller shall pay any and all assumption fees or
other charges of the Lenders in connection with the
assumption by Buyer of the loan obligations.
It is understood and agreed that the debt secured by (i) the
Carriage Mortgage (as defined in Exhibit B) matures on May
1, 1999, (ii) the Georgetown Mortgage (as defined in Exhibit
B) matures on May 1, 1999, and (iii) the Lakeshore Mortgage
(as defined in Exhibit B) matures on May 1, 1999, and (iv)
the Sunset Mortgage (as defined in Exhibit B) matures on
July 1, 1996. Buyer hereby understands and agrees that any
prepayment may not be made unless thirty (30) days prior
written notice has been duly given to the applicable Lender.
Therefore, by executing this Contract, Buyer hereby
represents, warrants and covenants not to prepay in whole or
in part the debt evidenced and/or secured by the Loan
Documents earlier than thirty one(31) days after the Closing
actually occurs, and Buyer hereby agrees to indemnify,
defend and hold harmless Seller and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall
be collectively referred to herein as the "Ginsburgs") from
and against any and all liabilities, damages, actions,
suits, proceedings, costs, fees and expenses, including
without limitation, attorneys' fees and expenses and any and
all income and/or any other tax, which
Page 5
Seller and/or the
Ginsburgs may suffer, be subject to and/or may be obligated
to pay as a result of any prepayment made before the
expiration of said thirty one (31) day period.
Notwithstanding the foregoing, if the maturity dates of the
loans are accelerated by the Lenders as a condition to their
granting consent to the sale of the Properties to Buyer
which acceleration results in the imposition of any
prepayment premiums or fees, Seller agrees to pay such
prepayment premiums or fees. If, however, the maturity
dates of the loans are not accelerated by the Lenders as a
condition to their granting of such consent, Buyer shall be
obligated to pay any and all prepayment premiums or fees
which may be imposed on any such prepayment of the loans by
Buyer. Nothing contained in the two previous sentences
shall be deemed to allow Buyer to prepay any of the loans
prior to the expiration of said thirty one (31) day period,
as hereinabove provided. It is specifically understood and
agreed that all of the agreements, terms, provisions,
conditions, representations, warranties and covenants stated
in this paragraph shall expressly survive the Closing.
It is further specifically understood and agreed that it is
a condition precedent to Seller's obligations hereunder that
the Lenders permit the sale of the Properties to Buyer
pursuant to the terms and conditions hereof without
accelerating such debt or modifying the terms of the Loan
Documents except as hereinbelow provided. Seller and Buyer
hereby understand and agree that in order to grant its
consent to the sale of the Properties, the Lenders (or any
one of them) may require that the terms of the loans
evidenced and/or secured by the Loan Documents be modified,
including without limitation, by increasing the interest
rate or accelerating the maturity date of the loans, and may
require that Buyer execute any and all loan documents in
order to effect such modification to the terms of the loans.
Accordingly, Buyer hereby agrees to accept and to agree to
any and all of such modified terms of the loans and to
execute and deliver any and all of such loan documents which
the Lenders shall require as a condition of their granting
their consent to the sale of the Properties, subject to the
following. If the Lender or Lenders increase the interest
rate by more than one (1%) percent or increase any
prepayment premium which would be payable currently under
the Loan Documents on any prepayment after the 31 day period
discussed above, then Seller at Seller's election, in its
sole discretion, shall have the right to cancel this
Contract or to reimburse Buyer for the amount of the
increase in the interest rate greater than one (1%) percent
or for the amount of the increase to the prepayment premium,
as applicable. If Seller does not elect in writing to
reimburse Buyer for such increases, as hereinabove provided,
or elect to terminate this Contract, within ten (10) days of
Seller being notified of the Lender's or Lenders' intention
to require such increases, then Buyer shall have the right
to terminate this Contract within five (5) days after the
expiration of such ten (10) day period, time being of the
essence with respect to the election to terminate before the
expiration of such five (5) day period. If the Lender or
Lenders refuse to approve the assumption of the Loans
by Buyer on any terms or accelerate the maturity date to a date
which occurs earlier than thirty one (31) days after the
Closing as a condition to approving the assumption of the
Loans by Buyer, Seller and Buyer shall each have the right
in each instance to cancel this Contract within ten (10)
days of (i) Lender's or Lenders' refusal to approve the
assumption or (ii) Lender's or Lenders' intention to
accelerate the maturity date to a date which is earlier than
thirty-one
Page 6
(31) days after the Closing Date as a condition
to approving the assumption, as applicable, time being of
the essence with respect to such election to terminate
before the expiration of such ten (10) day period. If the
Buyer or Seller elects to cancel this Contract pursuant to
the foregoing provisions, the Contract Deposit shall be
returned to Buyer and upon such return, this Contract shall
be deemed canceled and of no further force or effect,
neither party having any further rights or obligations with
respect thereto (except as otherwise expressly provided in
this Contract). If, however, the maturity date is
accelerated to a date which occurs no earlier than thirty-
one (31) days after the Closing Date, no prepayment premium
which would be payable after the said thirty-one (31) day
period is increased, the interest rate is increased by not
more than one (1%) percent or Seller elects in its sole
discretion, to pay any increase in the interest rate over
the one (1%) percent increase or the increase in the
prepayment premium, Buyer hereby understands and
specifically agrees to accept (and to execute and deliver)
all such modifications and amendments to the Loan Documents
requested by the Lenders and hereby understands and agrees
that it shall not have the right to terminate this Contract
as a result thereof.
Further, Buyer hereby represents, warrants and covenants to
Seller to pay in full the entire amount of the indebtedness
evidenced and/or secured by the Loan Documents on the stated
maturity dates (as same may be modified), and Buyer hereby
agrees to indemnify, defend and hold harmless Seller and the
Ginsburgs from and against any and all liabilities, damages,
actions, suits, proceedings, costs, fees and expenses,
including without limitation, attorneys' fees and expenses
which Seller and/or the Ginsburgs may suffer, be subject to
and/or may be obligated to pay as a result of any failure to
pay in full said indebtedness as and when due. Buyer agrees
to pay any fees, costs and expenses imposed or required by
either or both Lenders, with respect to the satisfaction of
said debt. It is hereby specifically understood and agreed
that all of the agreements, terms, provisions, conditions,
representations, warranties and covenants stated in this
paragraph shall expressly survive the closing.
3. Permitted Encumbrances. Each Property shall be
sold and conveyed subject to the following encumbrances
(hereinafter referred to as the "Permitted Exceptions"):
(a) Subject to Buyer's right to terminate prior to the
Due Diligence Expiration Date (as hereinbelow defined), any
state of facts a survey and/or inspection of the Property
may show;
(b) Subject to Buyer's right to terminate prior to the
Due Diligence Expiration Date, all present and future laws,
statutes, codes, ordinances, rules, regulations,
restrictions and orders affecting the Property, including
without limitation, all zoning and building ordinances and
regulations of the city, town and/or village in which the
Property is located;
(c) The lien of real estate taxes, assessments, water
charges, sewer rents and municipal charges subject to
apportionment as provided for herein;
Page 7
(d) All covenants, restrictions, easements,
reservations, conditions, consents and agreements of record
although Buyer shall have the right to review the title to
the Property pursuant to paragraph 4 below, provided,
however, Buyer shall not have the right to raise an
objection to title to any of those matters set forth on
Exhibit C attached hereto and made a part hereof or to any
of the Loan Document as currently in effect;
(e) All Tenant Leases, subleases, tenancies and rights
of occupancy affecting the Property, all as may be affected
by any rent laws, regulations, court rulings and court
decisions; and to the form of lease being used at the
Property, it being understood and agreed that such leases
and tenancies may be terminated or expire between the date
hereof and the Closing because of expiration, defaults,
summary proceedings or for any other reason whatsoever and
Seller shall not be liable therefor;
(f) The rights, if any, relating to construction,
maintenance and operation of public utility lines, wires,
poles, cables, pipes, distributing boxes and other equipment
and installations on, over and under the Property;
(g) To all violations of Federal, state and local
laws, ordinances, regulations, rules, orders or requirements
according to or issued by any governmental authority having
jurisdiction with respect to the Property, provided,
however, Seller hereby represents that to the best of its
knowledge without due inquiry it is not aware of any such
violations;
(h) To all maintenance, supply, management and service
contracts set forth on Exhibit D annexed hereto and made a
part hereof and any and all other such contracts and
amendments, extensions or modifications thereto which Seller
may enter into in the ordinary course of its business
(collectively, the "Service Contracts"), provided, however,
Seller hereby agrees that there will be no other Service
Contracts which will continue in effect after the Closing
except as set forth in Exhibit D, except Seller shall have
the right to enter into additional Service Contracts which
would bind Buyer if Seller obtains Buyer's prior consent,
which consent shall not be unreasonably withheld, denied,
delayed or conditioned;
(i) Encroachments and projections of walls,
foundations, ▇▇▇▇▇▇, cellar steps, areas, cornices, trim or
other improvements or installations onto the Property or
from the Property onto adjoining property; party walls and
party wall rights; variations between the record lot lines
of the Property and those shown on the tax map; and consents
of record for the erection and maintenance of any structures
on, under or above any streets or roads in front of or
adjoining the Property; and
(j) The Loan Documents as currently in effect.
4. Title Review.
(a) The provisions of this paragraph 4 shall apply
equally to each Property. Buyer has the right to review
title to the Property and raise objections thereto (except as
Page 8
provided in paragraph 3(d) above) during the ten (10) day
period commencing on the date Buyer receives the title
insurance commitment with respect to the Property, as
discussed below. In the event Buyer wishes to raise any
objections to the title to the Property (except as provided
in paragraph 3(d) above), Buyer shall follow the procedure
set forth in Paragraph 4(b) below. In the event Buyer does
not raise any objections to the title to the Property within
said ten (10) day period, in accordance with paragraph 4(b)
below, then Buyer shall be deemed to have agreed to accept
title to the Property in the state as set forth in the title
insurance commitment.
(b) Buyer shall order, within five (5) days after the
date on which a fully executed counterpart of this Contract
is delivered to Buyer (hereinafter the "Effective Date"), a
title insurance commitment (the "Title Commitment") from a
reputable title insurance company licensed to do business in
the State of New York (hereinafter referred to as the "Title
Company") which shall commit to insure at Closing Buyer's
title to the Property. Buyer, within ten (10) days after
receipt of the Title Commitment, shall notify Seller in
writing of any objections as to the marketability of title
matters reflected in such Title Commitment (except as may be
provided in paragraph 3(d) above). To the extent that Buyer
does not furnish Seller with written notice of objections to
the Title Commitment, within ten (10) days after receipt of
the Title Commitment, Buyer shall be deemed to have waived
any such objections to the Title Commitment and the status
of title of the Property. If Buyer shall notify Seller in
writing of any objections as to the marketability of title
as reflected in the Title Commitment within such ten (10)
day period, then Seller shall have the right at its option
to cure said objections or the right not to cure said
objections. Seller shall notify Buyer as to its election
within ten (10) days after receipt of Buyer's notice of
objections. If Seller shall elect not to cure said
objections, then Buyer shall have the right to elect either
to accept title subject to such objected items without any
reduction in the Purchase Price or to terminate this
Contract. Buyer shall notify Seller as to its election
within seven (7) days of receipt of Seller's notice to Buyer
of its election not to cure said objections. If Buyer shall
fail to give Seller such notice of Buyer's election either
to accept title or to terminate this Contract within the
time specified, it shall be presumed conclusively that Buyer
has elected to accept title to the Property subject to such
objected items without any reduction in the Purchase Price.
If Buyer elects to terminate this Contract within the time
specified above, neither Buyer nor Seller shall have any
further liability hereunder (except as otherwise expressly
provided in this Contract), provided, however, the Contract
Deposit (or so much as has been deposited) shall be returned
to the Buyer, and Buyer shall be obligated to pay all
charges relating to said Title Commitment. In the event
Seller elects to cure any objections raised by Buyer
concerning said Title Commitment, Seller shall have a
reasonable period of time within which to cure such
objections. After Buyer has approved the state of title as
per the above, Buyer shall have no right to object to the
state of title to the Property, except as to any
encumbrances on title caused by Seller between said time
title was so approved and the date of Closing.
5. Apportionment. (a) The following are to be
apportioned as of midnight of the day prior to the Closing
Date for each Property and shall serve to reduce or
increase, as the case may be, the cash to be paid at
Closing:
Page 9
(i) Real estate taxes, sewer rents, water charges
and similar charges (singularly "Imposition" and
collectively "Impositions") on the basis of the respective
periods for which the same are assessed. If the Closing
shall occur before any such Imposition has been fixed,
apportionment of such Imposition shall be based on the
amount of the Imposition paid for the latest applicable
period, but shall be re-apportioned upon receipt of the
applicable bills therefor and upon demand of either party;
(ii) Utility charges, including without
limitation, water, gas, electrical and telephone services
(to the extent not paid by Tenants), shall be apportioned
based on final meter readings or bills, as the case may be.
If the final meter reading or ▇▇▇▇ for any utility charge
has not been rendered for the period in which the Closing
Date occurs, such utility charges shall be adjusted at
Closing on the basis of the charges for the most recent
prior period, but shall be re-apportioned upon receipt of
the final meter readings or applicable utility bills and
upon the demand of either party;
(iii) Current accounts paid or payable under any
Service Contracts affecting the Property;
(iv) All rents actually collected by Seller under
the Tenant Leases for the month in which the Closing occurs.
Until the Closing, Seller may (but shall not be required to)
institute any action or proceeding against any Tenant based
upon any default or failure of such Tenant to perform the
terms, covenants or conditions of such Tenant's lease or
tenancy. At Closing Seller shall furnish to Buyer a
schedule of all rents and other charges which are then
payable by Tenants of the Property, but which have not been
paid as of the Closing Date. Any such delinquent rents or
charges collected by Buyer subsequent to the Closing Date
for the month in which the Closing occurs (the "Closing
Month") shall be pro-rated as of midnight of the day prior
to the Closing Date and the pro-rated share payable to
Seller shall be remitted to Seller promptly by Buyer. With
respect to any months other than the Closing Month, if Buyer
collects any such delinquent rents or charges owed by a
Tenant or Tenants, then, the first rentals and monies
received by Buyer (other than for the Closing Month) from
such Tenant or Tenants shall be applied first to pay the
rent due for the current month and any excess remaining
shall be received in trust by Buyer for the account of
Seller in payment of such past due rents or charges and
shall be promptly remitted by Buyer to Seller forthwith.
Seller shall have the right subsequent to the Closing to
bring a legal proceeding against any Tenant to enforce
collection of past due rents owed to Seller by said Tenant
and Buyer shall make available to Seller all books and
records required therefor and shall otherwise cooperate with
Seller in connection therewith. All rent collected by
Seller after the Closing for any rental periods applicable
to any time after the Closing shall belong to Buyer, and if
paid to Seller, Seller shall promptly send such rent to
Buyer. The provisions of this paragraph shall survive
closing.
(v) At closing, Seller will assign all security
deposits given by Tenants at the Property to Buyer, or in
the alternative, at Seller's option, make an equivalent
Page 10
adjustment to the cash payable at Closing, and Buyer shall
indemnify Seller from and against any and all claims made as
a result of any actions or omissions of Buyer with respect
thereto. Seller will not release any such security deposits
in whole or in part nor retain any security deposits as an
offset against unpaid rent due from any Tenant unless the
said Tenant is no longer in possession of an apartment at
the Property; and
(vi) All wages of employees of Seller working at
the Property, if applicable; and
(vii) Interest due under the notes secured by the
Carriage Mortgage, the Georgetown Mortgage, the Lakeshore
Mortgage and the Sunset Mortgage, respectively, for the
month in which the Closing occurs.
(b) The obligation pursuant to this paragraph 5 to
apportion or re-apportion any of the foregoing items at or
subsequent to the Closing shall survive the Closing for a
period of twelve (12) months. At the expiration of said
twelve (12) month period, unless either Seller or Buyer
objects to an apportionment or demands a re-apportionment
within such twelve (12) month period, all adjustments shall
be deemed final.
6. Assessments; Notices. (a) If at the time of
delivery of the "Deeds" (as hereinafter defined), the
Property or any part thereof shall be or shall have been
affected by an assessment or assessments which are or may
become payable in annual installments, then, for the
purposes of this Contract, all unpaid installments of any
such assessment which are due and payable and constitute a
lien as of the Closing Date shall be paid and discharged by
Seller (subject to apportionment for the period in which the
Closing occurs) and all other unpaid installments of any
such assessment which are due and payable after the Closing
Date shall be the sole responsibility of Buyer (subject to
apportionment for the period in which the Closing occurs).
This paragraph shall apply equally to each Property
7. Closing Costs. Seller shall pay at Closing any and
all gains tax and transfer tax levied or assessed against or
upon the conveyance of title to the Properties. Buyer
shall pay at Closing all other costs in connection with this
Contract, including without limitation, the premiums and all
other costs and expenses charged by the Title Company for
the issuance of the Title Commitment and the title insurance
policies to Buyer, any and all survey costs and costs and
expenses in connection with Buyer's due diligence and other
review of the Properties. Buyer also shall pay at Closing
the recording fees for the Deeds and all other transfer
documents. Buyer shall pay all brokerage commissions and
fees in connection with the sale of the Properties by Seller
to Buyer. Except as otherwise expressly set forth herein,
each party shall pay their own respective fees and costs,
including attorney's fees and costs.
8. Date and Place of Closing. Settlement, the
delivery of the Deeds and all other "Closing Documents" (as
hereinafter defined) in exchange for the Purchase Price and
the closing of title (herein referred to as the "Closing")
shall take place in escrow, by mail, at the office of the
Escrow Agent on the Closing Date. Except as may be provided in the
Page 11
next sentence, the Closing for all of the Properties
shall occur simultaneously. The Closing Date shall be on a
date which is thirty (30) days after the expiration of the
Due Diligence Period, with respect to the Carriage Property,
Georgetown Property and Lakeshore Property, and on the
earlier of (i) ten (10) days after the expiration of the Tax
Credit Period (as defined in paragraph 12 hereof), and (ii)
thirty (30) days after the expiration of the Due Diligence
Period if Buyer has obtained the Eligibility Letter (as
defined in paragraph 12 hereof), with respect to the Sunset
Property. Notwithstanding the foregoing, it is understood
and agreed that Seller shall have the right in its sole
discretion to extend the Closing Date for a period not to
exceed sixty (60) days on five (5) days notice, and/or
Seller shall have the right in its sole discretion to
accelerate the Closing Date on fifteen (15) days written
notice to Buyer (provided such accelerated Closing Date
occurs after the expiration of the Due Diligence Period with
respect to the Carriage Property, Georgetown Property and
Lakeshore Property, and after the Tax Credit Period with
respect to the Sunset Property only). The Escrow Agent
shall release the Deeds to Buyer for recordation (or to the
Title Company if Buyer so directs) upon Escrow Agent's
receipt of the Purchase Price in readily available Federal
funds and upon Buyer's assumption of the obligations
represented by the Loan Documents.
9. Delivery At Closing.
(a) At the Closing, Seller shall deliver to Buyer all
of the following with respect to each Property (the "Closing
Documents"):
(i) A bargain and sale deed with covenants
against grantor's acts (short form), in substantially the
same form as set forth in Exhibit E annexed hereto,
conveying the Property to Buyer subject to the Permitted
Exceptions and those exceptions listed on Schedule B of the
Title Commitment which have not been objected to by Buyer or
which have been objected to by Buyer and either been
approved or, pursuant to the terms hereof, deemed approved
by Buyer pursuant to paragraph 4(b), or cured by Seller
(herein individually referred to as the "Deed" and
collectively as the "Deeds");
(ii) A ▇▇▇▇ of Sale conveying all Personal
Property to Buyer without recourse to Seller in
substantially the same form as set forth in Exhibit F
annexed hereto;
(iii) The Tenant Leases;
(iv) An original executed Assignment and
Assumption of all Tenant Leases and security deposits made
under the Tenant Leases if Seller has not elected to make an
adjustment for the security deposits at Closing;
(v) Notice to all Tenants of the Property, duly
executed by Seller, advising said Tenants of the sale of the
Property to Buyer and directing that all rents and other
payments, as of the Closing Date, be sent to Buyer (or, if
Buyer shall so direct, to Buyer's Agent) at the address to
be provided by Buyer;
Page 12
(vi) Seller's affidavit stating Seller's Federal
taxpayer identification number and certifying that Seller 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;
(vii) Original executed counterpart of an
Assignment and Assumption of all Service Contracts;
(viii) An affidavit of the party executing the
Deed on behalf of Seller and an appropriate resolution or
certificate of Seller stating that Seller and any persons
acting for or on behalf of Seller are authorized and
empowered to make this Contract and to perform all
obligations on Seller's part to be performed hereunder and
to convey title to the Property and to execute, where
necessary, and to deliver all of the Closing Documents
referenced herein to Buyer in accordance with the terms and
provisions of this Contract;
(ix) Properly executed transfer and gains tax
returns, to the extent required;
(x) Keys to the Property;
(xi) A current "Rent Roll" (as hereinafter
defined); and
(xii) Certificates of Occupancy with respect to
the Properties, if available.
(b) At the Closing, Buyer shall deliver to Seller all
of the following:
(i) Payment of the Purchase Price as required by
and as adjusted pursuant to the terms and provisions of this
Contract;
(ii) An affidavit of the party executing this
Contract on behalf of Buyer and an appropriate resolution or
certificate of Buyer, in form reasonably satisfactory to
Seller, stating that Buyer and any persons acting for or on
behalf of Buyer are authorized and empowered to make this
Contract and to perform all obligations on Buyer's part to
be performed hereunder;
(iii) Original executed and acknowledged
assumption agreement duly executed by Buyer with respect to
the Loan Documents as required by paragraph 2(c) hereof;
(iv) Original executed counterpart of Assignment
and Assumption of all Tenant Leases and security deposits
made under the Tenant Leases if Seller has not elected to
make an adjustment for security deposits at Closing; and
(v) Original executed counterpart of Assignment
and Assumption of all Service Contracts.
Page 13
(c) It is understood and agreed that the Assignment
and Assumption Agreements referred to above in paragraphs
9(a)(iv), 9(a)(vii), 9(b)(iv) and 9(b)(v) shall contain an
indemnity provision pursuant to which Seller will agree to
indemnify Buyer and hold Buyer harmless from and against any
loss, cost, liability or damages (including reasonable
attorneys' fees) which result from, arise out of or relate
to (i) any claims arising out of any of the Tenant Leases or
security deposits pertaining to any period prior to the
Closing Date or (ii) any claims arising out of any of the
Service Contracts pertaining to any period prior to the
Closing Date, respectively.
(d) It is understood and agreed that the Assignment
and Assumption Agreements referred to above in paragraphs
9(a)(iv), 9(a)(vii), 9(b)(iv) and 9(b)(v) shall contain an
indemnity agreement pursuant to which Buyer will agree to
indemnify Seller and hold Seller harmless from and against
any loss, cost, liability or damages (including reasonable
attorneys' fees) which result from, arise out of or relate
to (i) any claims arising out of any of the Tenant Leases or
security deposits pertaining to any period after the Closing
Date commencing with the Closing Date or (ii) any claims
arising out of any of the Service Contracts pertaining to
any period after the Closing Date commencing with the
Closing Date, respectively.
10. Rent Roll.
Annexed hereto and made a part hereof as "Exhibit G" is
a complete and correct rent roll with respect to each
Property (herein referred to as the "Rent Roll") which sets
forth: (i) the name of each Tenant; (ii) each Tenant's
apartment; (iii) the current rent; (iv) the expiration date;
(v) the rent actually collected; and (vi) all security
deposits. The Rent Roll to be delivered to Buyer at the
Closing will be made current as of the Closing Date.
11. Representations. (a) Buyer hereby warrants,
represents and agrees that the following are true as of the
Effective Date and will be true on the Closing Date and
shall survive the Closing Date:
(i) Buyer is a duly organized and validly existing
limited partnership under the laws of the State of New York;
has all requisite power and authority to execute and deliver
this Contract and all other documents and instruments to be
executed and delivered by it hereunder, and to perform its
obligations hereunder and under such other documents and
instruments in order to consummate this Contract in
accordance with the terms and conditions hereof, and all
necessary actions of the Buyer have been taken to confer all
necessary power and authority upon the persons executing
this Contract and all documents which are contemplated by
this Contract on behalf of Buyer, providing that Seller
acknowledges that it is a condition of Buyer's obligations
hereunder that the Board of Directors of the general partner
of the Buyer approves this Contract on or before the Due
Diligence Expiration Date, although it is understood and
agreed that Buyer's sole rights and remedies in the event
such approval is not obtained shall be the right to
terminate this Contract and receive a return of the First
Deposit, pursuant to the terms set forth in paragraph 12
hereof; and
Page 14
(ii) There is no litigation or law suit pending
against Buyer which might adversely effect Buyer's ability
to consummate this Contract in accordance with the terms and
provisions hereof.
(b) Seller represents and warrants to Buyer, to the
best of Seller's knowledge without independent inquiry:
(i) To the best of Seller's knowledge, there is no
litigation, proceeding or investigation pending, or to the
best knowledge of Seller threatened, against or affecting
the Properties that might affect or relate to the validity
of this Agreement, other than those fully covered by
insurance.
(ii) There is no pending condemnation of the
Properties or any part thereof.
(iii) Until Closing, Seller shall make all reasonable
efforts not to default under its obligations under the terms
of the Tenant Leases encumbering the Properties and under
the Service Contracts, subject to Seller exercising its sole
but reasonable discretion in exercising its rights and
remedies under the Tenant Leases and Service Contracts and
at law and in equity, and Seller shall continue to operate
the Properties in a commercially reasonable manner.
(iv) Seller shall permit Buyer to examine and copy all
of the leases encumbering the Properties, including all
additions, amendments or modifications thereto as provided
herein. Seller shall not accept any prepayment of any rent
due under any such leases for a period greater than one (1)
month in advance other than security deposits.
Irrespective of anything to the contrary contained herein
the representations and
warranties of Seller, herein contained, shall expire and be
of no further effect upon the expiration of 6 months after
Closing. This expiration shall not apply to any breach of
representation which arises out of an intentional material
misrepresentation made by Seller.
The phrase "to the best of Seller' knowledge" or its
equivalent shall be deemed to mean the personal and actual
knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ only.
12. Due Diligence. (a) Buyer is hereby granted a
period commencing on the Effective Date and terminating on
May 21, 1996 (herein referred to as the "Due Diligence
Period") to inspect the Properties, Seller's books and
records pertaining to the Properties and other information
relating to the Properties, at Buyer's sole cost and
expense. During the Due Diligence Period, Buyer may
perform, at Buyer's sole cost and expense, such items of due
diligence as it may deem appropriate, provided Buyer keeps
all such information obtained strictly confidential. Seller
hereby authorizes Buyer and Buyer's agents, upon reasonable
notice and during reasonable business hours, to enter upon
the Properties in order to inspect the same and to conduct
the desired due diligence including
Page 15
but not limited to,
environmental and engineering studies, all at Buyer's sole
cost and expense. If Buyer elects not to acquire the
Properties pursuant to the terms and conditions hereof,
Buyer must notify Seller in writing prior to 5:00 PM on May
21, 1996, time being of the essence with respect to such
date and time (the "Due Diligence Expiration Date"). If
such written notice is not delivered to Seller by Buyer
prior to the Due Diligence Expiration Date, Buyer shall be
obligated to deliver to the Escrow Agent the Second Deposit
and to close the transaction contemplated hereby pursuant to
the terms and conditions hereof, and shall have and shall be
deemed to have waived any and all rights to terminate this
Contract pursuant to this paragraph. In the event Buyer
does timely notify Seller in writing that it has elected to
terminate this Contract, the First Deposit shall be returned
to Buyer and this Contract shall be deemed to be terminated
and neither party shall have any further rights against or
obligations to the other, except as otherwise expressly
provided in this Contract. For and in consideration of the
right to inspect the Properties and to conduct the desired
due diligence, Buyer agrees to restore any and all damage to
the Properties and/or any of them caused by Buyer and/or
Buyer's agents, representatives, brokers, contractors,
subcontractors, employees and/or licensees and to indemnify,
defend and hold Seller harmless from and against any and all
suits, actions, proceedings, damages, losses, liabilities,
liens, repairs, fees, costs and expenses (including
reasonable attorneys' fees, costs and expenses) caused by
Buyer or its agents, representatives, brokers, contractors,
subcontractors, employees or licensees or arising out of or
relating to Buyer's (or Buyer's agents', representatives',
brokers', contractors', subcontractors', employees' or
licensees') inspection, activities or entrance on the
Properties and/or any one of them. The aforesaid obligation
to restore and aforesaid indemnity shall survive the Closing
or the earlier termination of this Contract.
It is specifically understood and agreed that the
transaction contemplated hereby is an "all or none"
transaction meaning that if Buyer elects to terminate this
Contract pursuant to any express provision of this Contract
(including this paragraph 12) with respect to one or more,
but not all, of the Properties, then Buyer's election to
terminate shall be deemed to be and shall operate as an
election to terminate the entire Contract for all of the
Properties (the "All or None Condition"). If such election
is made by Buyer, this Contract shall be deemed to be
terminated and Buyer shall be entitled to a return of the
Contract Deposit (or so much as may have been deposited) and
neither party shall have any further right or obligation
hereunder except as otherwise expressly provided in this
Contract. Notwithstanding the foregoing, in the event Buyer
timely elects to terminate this Contract with respect to one
or more, but not all, of the Properties, Seller shall have
the right, in its sole and absolute discretion, to waive the
All or None Condition and to elect to permit Buyer to
purchase the Property or Properties with respect to which
Buyer did not elect to terminate this Contract, on the terms
and conditions set forth herein except Seller and Buyer
shall mutually agree upon the purchase price for such
Property or Properties. The foregoing provision shall apply
to all of the rights of Buyer to terminate this Contract
which are expressly set forth herein including paragraphs 4,
12 and 15 hereof, provided, however, this paragraph shall
not be deemed to grant to Buyer any right to terminate this
Contract not expressly set forth herein.
Page 16
(b) With respect to the Sunset Property, Buyer is
hereby granted an additional period of thirty (30) days
commencing on the day immediately following the Due
Diligence Expiration Date and terminating at 5:00 PM on the
thirtieth (30th) day after the day immediately following the
Due Diligence Expiration Date (the "Tax Credit Period") for
the sole reason of attempting to obtain a "Determination of
Credit Eligibility" letter (the "Eligibility Letter") from
the State of New York regarding Housing Tax Credits under
Section 42 of the Federal Low Income Housing Tax Act (as
opposed to a formal award of said Housing Tax Credits) with
respect to the Sunset Property on the following terms and
conditions. Buyer shall apply for the Eligibility Letter
promptly after executing and delivering this Contract and
diligently pursue the same. If Buyer obtains an Eligibility
Letter on or before 5:00 PM on the day on which the Tax
Credit Period expires as hereinabove provided (the "Tax
Credit Period Expiration Date"), Buyer shall not have the
right to terminate this Contract (but only with respect to
the Sunset Property) pursuant to this paragraph. In the
event Buyer does not obtain an Eligibility Letter before the
Tax Credit Expiration Date, Buyer shall have the right to
terminate this Contract (but only with respect to the Sunset
Property) provided Buyer delivers written notice to Seller
on or before the Tax Credit Period Expiration Date and
satisfies the conditions set forth herein. In the event
Buyer delivers written notice to Seller on or before the Tax
Credit Period Expiration Date that it has elected to
terminate this Contract (but only with respect to the Sunset
Property) time being of the essence with respect to such Tax
Credit Period Expiration Date, Buyer shall receive a credit
to the Purchase Price in the amount of Five Million Three
Hundred Thousand and 00/100 ($5,300,000.00) Dollars. If
this Contract is terminated with respect to the Sunset
Property pursuant to the terms herein, this Contract shall
not be, and shall not be deemed to be, terminated with
respect to any of the other Properties and Buyer's
obligations shall be as set forth herein without change
except that Buyer shall not be obligated to purchase the
Sunset Property (and shall receive such credit to the
Purchase Price). In the event Buyer fails to deliver such
written notice to Seller on or before the Tax Credit Period
Expiration Date, Buyer shall no longer have the right to
terminate this Contract as set forth above. Further, it is
understood and agreed that as a condition to Buyer's
exercise of its right to terminate as set forth in this
paragraph, Buyer shall deliver to Seller written proof that
it submitted all necessary applications and documentation to
the Department of Housing and Urban Renewal in order to
apply for and obtain the Eligibility Letter and written
proof that such application for the Eligibility Letter was
denied. It is specifically understood and agreed that Buyer
shall not have the right to terminate this Contract as
provided in this paragraph in the event Buyer was granted an
allocation for Housing Tax Credits or the Eligibility Letter
was issued but was not able to make an offering and/or to
syndicate and/or sell the Sunset Property along with the
allocation of Housing Tax Credits at all or prior to the Tax
Credit Period Expiration Date. Buyer's right to terminate
this Contract as hereinabove provided shall only apply to
Buyer's inability to obtain the Eligibility Letter for the
Sunset Property, as hereinabove provided, and shall not
apply to any other due diligence matters with respect to the
Sunset Property, it being understood and agreed that any
right of Buyer to terminate this Contract with respect to
such other matters shall be governed by paragraph 12(a) of
this Contract.
Page 17
(c) The following provision shall apply to each
Property. It is expressly agreed and understood that Buyer
is purchasing the Property to be conveyed hereunder in an
"as is" condition as of the date hereof and with all faults
and Buyer hereby assumes the responsibility of all use,
wear, tear and deterioration between the date of this
Contract and the date of Closing. Except as to any
representation of Seller expressly provided herein and
expressly stated to survive Closing, is understood and
agreed that Seller is not making and specifically disclaims
any warranties or representations of any kind or character,
express or implied, with respect to the Property, including,
but not limited to, warranties or representations as to
matters of title, zoning, tax consequences, physical or
environmental conditions, occupancy, availability of access,
ingress or egress, operating history or projections,
valuation, governmental approvals, governmental regulations
or any other matter or thing relating to or affecting the
Property including, without limitation: (i) the value,
condition, merchantability, marketability, profitability,
suitability or fitness for a particular use or purpose of
the Property, and (ii) the manner, quality, state of repair
or lack of repair of the Property. Buyer agrees that with
respect to the Property, Buyer has not relied upon and will
not rely upon, either directly or indirectly, any
representation or warranty of Seller or any agent, broker,
employee, servant, representative or affiliate of Seller.
Buyer represents and warrants that it is a knowledgeable
Buyer of property and that it is relying solely on its own
expertise and that of Buyer's consultants, and that Buyer
shall assume the risk that adverse matters, including, but
not limited to, adverse physical and environmental
conditions, may not be revealed by any inspections or
investigations which Buyer may perform. Buyer
acknowledges and agrees that there are no oral agreements, warranties or
representations collateral to or affecting the Property by
Seller or any agent or affiliate of Seller or any third
party. Buyer expressly agrees that the terms and conditions
of this paragraph shall expressly survive the Closing and
not merge therein and Seller is not liable or bound in any
manner for any verbal or written statements, representations
or information pertaining to the Property furnished by any
agent, broker, employee, servant, representative or
affiliate of Seller or any other person.
(d) Seller shall provide Buyer with copies of the
following within ten (10) days after the Effective Date:
(i) The most current Rent Roll for each Property;
(ii) A copy of the form of the Tenant Leases;
(iii) The most recent tax bills for all real
estate taxes payable with respect to each Property;
(iv) Recent utility bills for each Property; and
(ix) Service Contracts relating to each Property
as of the Effective Date.
13. Condemnation/Casualty. This paragraph 13 shall
apply to all of the Properties. (a) Buyer shall have no
right to terminate this Contract in the event a casualty
Page 18
occurs, or in the event of the institution of any
proceedings, judicial, administrative or otherwise, prior to
Closing which shall relate to the proposed taking of any
portion of the Property by eminent domain, or in the event
notice of such proceeding is given before Closing, or in the
event of the taking of any portion of the Property by
eminent domain prior to Closing. In the event of any of the
foregoing, there shall be no reduction to the Purchase Price
payable by Buyer hereunder and Seller, at Closing, shall
assign and/or pay over to Buyer all proceeds and awards of
such casualty or taking which Seller received after the
Effective Date, less any reasonable amount which Seller may
have been obligated to pay for repairs or restoration of the
damage and/or in negotiating and obtaining the award or
proceeds. Notwithstanding the foregoing, Buyer shall have
the right to terminate this Contract in the event a casualty
occurs which would take more than one hundred twenty (120)
days, as estimated by Seller's architect, to restore the
Property after adjustment of the insurance proceeds, or if a
taking occurs which results in a loss of more than thirty
three (33%) percent of the parking lot or a portion of the
actual apartment building. If Buyer elects to terminate
this Contract with respect to one of the Properties, Buyer
shall notify Seller in writing within ten (10) days after
the occurrence of the casualty or after determination of the
amount of land (or building) being taken, as applicable, and
Buyer shall be entitled to a credit to the Purchase Price in
an amount reasonably acceptable to both parties.
(b) Upon the expiration of the Due Diligence Period,
Seller shall not settle any claim with respect to any
eminent domain proceeding concerning the Property or any
part thereof without obtaining Buyer's prior written consent
in each case, which consent shall not be unreasonably
withheld, denied or delayed.
(c) Seller hereby agrees to furnish Buyer with written
notification of any such eminent domain proceeding within
five (5) business days after receipt by Seller of notice of
the same.
14. Buyer's Default. Should Buyer default in the
performance of any of the terms of this Contract, Seller's
sole remedy with respect thereto shall be to retain the
Contract Deposit paid on account of this Contract, together
with any and all accrued interest thereon, as liquidated
damages, whereupon this Contract shall become null and void,
neither party having any further rights against the other,
except as otherwise expressly provided in this Contract.
The foregoing notwithstanding, if Buyer's default consists
of any act or failure to act, Seller shall give Buyer
written notice describing such default and shall afford
Buyer ten (10) days to cure such default before availing
itself of Seller's remedy under this paragraph.
15. Seller's Default. Should Seller default in the
performance of any of the terms of this Contract, Buyer
shall have the right to seek specific performance of this
Contract or the right to terminate this Contract by giving
written notice of termination to Seller. If Buyer should
elect to terminate this Contract, the Contract Deposit, with
any and all accrued interest thereon, shall be immediately
refunded to Buyer. The foregoing notwithstanding, if
Seller's default consists of any act or failure to act,
Buyer shall give Seller written notice describing such
default and shall afford Seller ten (10) days to cure such
default before availing itself of Buyer's remedies under
this paragraph.
16. Notices. All notices given or required to be
given hereunder shall be deemed to be duly given only if
sent by registered or certified mail, return receipt
requested and deposited postage prepaid in a post office
branch or box regularly maintained or if sent by a reputable
national overnight service (for next day delivery) addressed
to the parties
Page 19
at their respective addresses set forth
herein below or if sent by facsimile transmission to the
numbers indicated below:
If to Seller: ▇▇▇▇▇▇▇▇ Development Corp.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: Home Properties of New York, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Crossed
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party may designate in
accordance with this paragraph. Any such notice shall be
deemed effective on the earlier of receipt (with
acknowledgment) or the third business day after mailing or
the next day after delivery to such overnight service or, in
the case of a facsimile transmission, upon receipt of a
statement indicating that the transmission was successfully
completed, except that any notice of change of address shall
be effective only upon actual receipt. The attorney for
each party shall have the power to give any notice required
or desired to be given under this Contract with the same
force and effect as if the same had been given by such
party.
17. Broker. (a) Each party hereto represents to the
other that it has had no dealings with any other broker,
agent or finder in connection with this transaction except
for ▇▇▇▇▇▇ Smielgher (hereinafter referred to as the
"Broker").
(b) Buyer agrees to pay any and all commissions
due to the Broker at Closing if any is in fact due (and
shall not receive any credit to the Purchase Price for the
payment of such commission or any other commission). Buyer
hereby agrees to defend, indemnify and hold Seller harmless
against and from any and all claims of Broker with respect
to such commission and any costs incurred by Seller in
connection therewith (including, without limitation,
reasonable attorneys' fees and expenses). The provisions of
this subparagraph 17(b) shall survive the Closing or earlier
termination of this Contract.
(c) Except as provided in paragraph 17(b) above,
Buyer and Seller each represents and warrants to the other
that in the event any other claim is made for a broker's
commission or finder's fee as a result of acts or actions of
one of them with respect to this transaction, the party
because of whose acts or actions such claim is made
(hereinafter referred to as the "Indemnitor"), its successor
and assigns, hereby agrees to indemnify, defend and hold
harmless the other party (hereinafter referred to as the
"Indemnitee") from and against any and all loss, cost,
damage, liability or expense
Page 20
(including reasonable
attorney's fees and expenses) which Indemnitee may sustain,
incur or be exposed to by reason of any such claim. The
provisions of this subparagraph 17(c) shall survive the
Closing or any earlier termination of this Contract.
18. Modifications. This Contract may not be modified
or supplemented except by an instrument in writing signed by
the party to be charged or such party's attorney.
19. No Waiver. No waiver by either party of any
failure or refusal by the other party to comply with its
obligations under this Contract shall be valid unless in
writing and signed by the party to be charged or such
party's attorney and no such waiver shall be deemed a waiver
of any other or subsequent failure or refusal to so comply.
20. Governing Law/Waiver of Jury. This Contract and
all transactions contemplated by this Contract shall be
governed by and construed and enforced in accordance with
the laws of the State of New York without regard to
principles of conflicts of laws. Both Buyer and Seller
hereby irrevocably waive all right to trial by jury in any
action, proceeding or counterclaim arising out of or
relating to this Contract.
21. Recordation. Buyer covenants and agrees that in
no event will Buyer record or cause to be recorded this
Contract or any memorandum thereof or any affidavit,
assignment or other document relating to this Contract and
that if Buyer breaches the provisions of this paragraph,
Seller shall have the option of terminating this Contract
and retaining the Contract Deposit as liquidated damages in
addition to any other rights that Seller may have.
22. Seller's Obligations: If Seller is unable to
transfer title to Buyer in accordance with this Contract,
Seller's sole obligation shall be to refund the Contract
Deposit (or so much thereof as has been deposited) to Buyer.
After the Contract Deposit (or so much thereof as has been
deposited) is paid to Buyer, neither party shall have any
rights or obligations to the other and this Contract shall
be null and void, except as otherwise expressly provided in
this Contract.
23. Arms Length. This Contract and any exhibits
hereto have been negotiated at arms length by Seller and
Buyer and the parties hereto mutually agree that, for the
purpose of construing the terms of this Contract or any of
the exhibits hereto, neither party shall be deemed to have
been responsible for the drafting thereof.
24. Entire Agreement. All prior understandings,
agreements and negotiations by and between the parties
hereto are merged in this Contract, which also constitutes
the entire agreement of the parties and shall inure to and
bind the successors and permitted assigns of the respective
parties hereto.
25. Partial Invalidity. If any term or provision of
this Contract or the application thereof to any person or
circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Contract or the
application of such term or provision to persons or
Page 21
circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Contract shall be valid and
enforceable to the fullest extent of the law.
26. Headings. The headings of the paragraphs of this
Contract have been inserted for convenience of reference
only and shall not constitute a part hereof.
27. Counterparts. This Contract may be signed by the
parties in counterparts, both of which, when taken together,
shall be deemed an original Contract.
28. Cumulative Remedies. Each and every of the
rights, benefits and remedies conferred by this Contract or
any document executed pursuant to this Contract, are
cumulative and shall not be exclusive of any other of said
rights, remedies and benefits allowed by law or equity to
the parties, subject, however, to the provisions of
paragraphs 14 and 15 hereof.
29. Attorneys' Fees. Seller and Buyer agree that, in
the event of any litigation arising between the parties in
connection with this Contract, the losing party shall be
responsible for payment of the reasonable attorneys' fees of
the successful party (at trial and all appellate levels).
30. Survival. Buyer agrees that upon the delivery of
the Deed at Closing for each Property, it shall be deemed
and considered as full compliance by Seller of all
representations and warranties made by Seller in this
Contract, and all obligations and agreements by Seller to be
performed unless expressly stated herein to survive.
31. Assignment. This Contract may not be assigned by
Buyer without the consent of Seller on or before the Closing
Date, and in the event any assignment is consented to by
Seller, the assignee must assume all of the obligations and
liabilities of Buyer hereunder.
32. Tax Deferred Exchange. Seller has advised Buyer
of its intention to seek to effect a tax deferred exchange
pursuant to Section 1031 of the Internal Revenue Code, in
connection with the conveyance of the Properties (or any one
or several of them). If Seller is able to negotiate terms
acceptable to Seller for the transfer or acquisition of an
exchange property or properties, then Buyer agrees to
accommodate Seller in seeking to effect a tax deferred
exchange for that property or properties. Seller shall have
the right, expressly reserved here, to transfer the Property
in exchange for such exchange property or exchange
properties so identified by Seller so that Seller shall
become the owner of the exchange property or properties and
the owner of the exchange property or properties shall
become the owner of the Property or Properties subject to
all obligations of Seller hereunder. The owner of the
exchange property then shall complete this Contract. In the
alternative, Buyer agrees to cooperate with Seller with
respect to such exchange and agrees to execute all
documentation required to effectuate such exchange,
including, but not limited to, an Exchange Trust Agreement
and Designation of Exchange Property in accordance with the
forms as set forth in Exhibit H annexed hereto and made a
part hereof. Buyer makes no warranty whatsoever with
respect to the qualification of the transaction for tax
deferred exchange treatment under Section 1031 and Buyer
shall have no responsibility, obligation or liability with
respect to the tax consequences to Seller.
Page 22
Buyer's expenses
with respect to the conveyance of the Property shall be
limited to the expenses as set forth in this Contract
(although Buyer shall be responsible for its own attorneys'
fees and expenses). The covenants and obligations contained
in this Paragraph shall survive the Closing.
33. Confidentiality. By executing this Agreement and
except as otherwise provided herein, prior to the Closing
Seller agrees to keep any and all information with respect
to the transactions contemplated by this Agreement strictly
confidential, and will not disclose any such information,
without the Buyer's prior written consent except as may be
necessary to satisfy Seller's obligations hereunder and/or
to close the transaction contemplated hereby.
34. Financial Access. Seller will provide a signed
representation letter as prescribed by Generally Accepted
Auditing Standards as promulgated by the Auditing Standards
Division of the American Institute of Public Accountants
which representation is required to enable an Independent
Public Accountant to render an opinion on Buyer's financial
statements. Seller will provide access by Buyer's
representatives, upon reasonable notice and during
reasonable business hours, to all financial and other
information relating to the Properties as is sufficient to
enable them to prepare audited financial statements, at
Buyer's expense, in conformity with Regulation S-X of the
Securities and Exchange Commission (the "Commission") and
any registration statement, report or disclosure statement
required to be filed with the Commission.
IN WITNESS WHEREOF, this Contract has been duly
executed by the parties hereto as of the day and year first
above written.
SELLER:
GOSHEN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
GRAMATAN ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
WAKEFIELD ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
SCENIC GARDENS ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
Page 23
KINGSTON ASSOCIATES
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Partner
BUYER:
WITNESS HOME PROPERTIES OF NEW YORK, L.P.
By: By: Home Properties of New York, Inc.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ Crossed
-------------------- -----------------------(Seal)
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ Crossed
Title: Secretary Title: Executive Vice President
Page 24
The undersigned has executed this Contract solely to
acknowledge receipt of the First Deposit and to confirm its
acceptance of the duties of Escrow Agent as set forth in
paragraph 2(a) hereof.
Law Office of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Exhibits to be attached and made a part of this Contract:
Exhibit A-1 - Legal Description for Carriage Premises
Exhibit A-2 - Legal Description for Georgetown Premises
Exhibit A-3 - Legal Description for Lakeshore Premises
Exhibit A-4 - Legal Description for Sunset Premises
Exhibit A-5 - Personal Property
Exhibit B - Loan Documents
Exhibit C - Title Exceptions
Exhibit D - Service Contracts
Exhibit E - Limited Warranty Deed
Exhibit F - ▇▇▇▇ of Sale
Exhibit G - Rent Roll
Exhibit H -Exchange Trust Agreement
Designation of Exchange Properties
Page 25