Exhibit 2.6
CONTRIBUTION AGREEMENT
This Contribution Agreement ("Agreement"), made as of the 22nd day
of June, 2000 by and between
HOME PROPERTIES OF NEW YORK, L.P., a New York limited partnership, having
its principal office at 850 Clinton Square, Rochester, New York 14604,
(herein called "Buyer"),
HOME PROPERTIES OF NEW YORK, INC., a Maryland corporation, having its
principal office at 850 Clinton Square, Rochester, New York 14604, (herein
called "HME") and
S & S Realty, a New York general partnership having its principal office
at 124 Cedarhurst Ave., Cedarhurst, New York 11516 (herein the
"Contributor").
W I T N E S S E T H:
WHEREAS, the Contributor owns a certain apartment complex and adjacent
land located in the State of New York, all as more particularly described on
EXHIBIT A;
WHEREAS, the Contributor wishes to contribute its interest in the Property
(as hereinafter defined) in exchange for limited partnership interests in the
Buyer;
WHEREAS, Buyer desires to acquire the Property upon the happening of
certain events;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereby agree as
follows:
I.REAL PROPERTY DESCRIPTION. The Real Property owned by the Contributor
consists of an apartment complex commonly known as South Bay Manor, which
includes 61 apartments (the " Project"), located in the Town of Islip at
Sayville, County of Suffolk, State of New York, on land more particularly
described on EXHIBIT A, attached hereto, together and including all
buildings and other improvements thereon, including but not limited to,
the 60 apartment units plus the superintendent's residence, and all rights
in and to any and all streets, roads, highways, alleys, driveways,
easements and rights-of-way appurtenant thereto (the foregoing are
hereafter collectively referred to as the "Property").
II.OTHER ITEMS. The following items owned by Contributor now in or on the
Property, are included in this Agreement and shall be conveyed to Buyer at
Closing (as hereafter defined):
A. all heating, air-conditioning, plumbing and lighting fixtures,
B. ranges and refrigerators (one of each for each apartment unit),
C. boiler,
D. any bathroom fixtures, wall-to-wall carpeting, exhaust fans, hoods,
signs, screens, maintenance building, fences, carpeting and runners,
cabinets, mirrors, shelving, ceiling fans, mail boxes, any and all
related equipment used by the Contributor in connection with the
operation and maintenance of the Property, and
E. any fixtures appurtenant to the Property and any other furniture or
equipment used by the Contributor in connection with the operation
and maintenance of the Property, including any vehicles used in
connection with the operation and maintenance of the Property
(hereinafter with the items listed in A-D above, collectively the
"Other Items").
The Other Items are being sold "as is," but will be conveyed to Buyer by
Bill of Sale free and clear of all liens and encumbrances.
III.PRICE AND MANNER OF PAYMENT.
A. The Aggregate Contribution Value for the contribution by the
Contributor to the Buyer shall be Three Million Fifty Thousand and
no/100 ($3,050,000) (the "Aggregate Contribution Value"). The net
contribution value (the "Net Contribution Value") for the
contribution shall be an amount equal to the Aggregate Contribution
Value less principal and accrued interest upon the existing
financing with respect to the Property on the Closing Date (the
"Existing Loan") and other adjustments as provided for herein. The
Net Contribution Value shall be payable by issuance to the
Contributor, or to the partners of the Contributor as designated in
writing by the Contributor (collectively, the "Designees" and
individually, a "Designee"), of limited partnership interests in the
Buyer (collectively, the "Units" and each one of the Units, a
"Unit") having a value, determined as described in paragraph D
below, equal to the Net Contribution Value. Notwithstanding the
above, the Contributor may only designate individuals or entities to
be Designees who have established to the reasonable satisfaction of
the Buyer that they are accredited investors under applicable
securities laws.
B. The Buyer shall deposit into an escrow account with Blackwell
Sanders Peper Martin, with escrow instructions in the form of
EXHIBIT B hereto: (i) Earnest Money in the amount of $150,000.00
not later than three (3) days following the date of this Agreement
(the "Initial Earnest Money"); and (ii) additional Earnest Money in
the amount of $150,000.00 not later than three (3) days following
the end of the Due Diligence Period in the event that Buyer does not
terminate this Agreement as provided in Section 14A (the "Additional
Earnest Money"). In the event that Buyer does not terminate this
Agreement as provided in Section 14A and Buyer does not deposit the
Additional Earnest Money prior to the expiration of the three (3)
day period following the Due Diligence Period, this Agreement will
automatically terminate and the Contributor shall be entitled to the
Initial Earnest Money. The Initial Earnest Money and the Additional
Earnest Money, together with interest, if any, earned thereon, shall
be referred to herein as the Earnest Money. The Earnest Money shall
be refundable in full until the end of the Due Diligence Period, at
which time the Earnest Money shall thereupon become non-refundable.
The Earnest Money shall be returned by the Contributor to Buyer at
Closing and not applied against the Net Contribution Value, except
that at Contributor's option, up to $100,000.00 of the Earnest Money
may be applied against the Net Contribution Value at Closing. Upon
termination of this Agreement by the Buyer prior to the expiration
of the Due Diligence Period or pursuant to Section 9 as permitted
hereunder or upon the Contributor's default, the Earnest Money shall
be returned to the Buyer.
C. At Closing, the Buyer shall pay all accrued interest and the
principal balance of the Existing Loan to the holder of the Existing
Loan. That payment shall be deemed a payment by Buyer in that
amount towards the Aggregate Contribution Value.
D. The total number of Units to be issued to the Contributor and the
Designees will be equal to the Net Contribution Value divided by the
"Market Value" of a Unit. The Market Value of a Unit shall be equal
to the average closing price for 20 consecutive trading days prior
to, but not including, the Closing Date of a share of common stock
of Home Properties of New York, Inc., ("HME") as listed on the New
York Stock Exchange, provided that if during such 20-day period
either: (i) a dividend or distribution is declared or paid in the
form of common stock of HME; or (ii) the common stock of HME is
subdivided or combined, the Market Value will be equitably adjusted.
E. The initial distribution payable with respect to Units issued
hereunder shall be made on the date on which HME pays the dividend
to the holders of its common stock that relates to the earnings for
the calendar quarter in which the Units were issued and shall be
pro-rated such that the Contributor and/or the Designees receiving
Units shall receive a pro-rata distribution for the period from the
date on which the Units were issued to and including the last day of
the calendar quarter in which the Units were issued. The
obligations of this subparagraph 3(E) shall survive Closing
hereunder.
F. Upon the terms and conditions of a Registration Rights Agreement, in
the form of EXHIBIT C attached hereto (the "Registration Rights
Agreement"), to be dated the Closing Date, the Contributor or
Designees shall have registration rights and a listing commitment
with regard to the shares of HME into which the Units can be
converted (the "Registration Rights"), including demand and piggy
back rights. The exercise of Registration Rights shall be without
cost to the Contributor or Designees.
IV. ADJUSTMENTS AT CLOSING. The following shall be adjusted and prorated
between the Contributor and the Buyer at Closing as if the Buyer was the
owner of the Property as of the Closing Date: The adjustments shall be
made in cash or as an adjustment to the Contribution Value, at the option
of the Contributor.
A. current fiscal year real estate taxes,
B. water charges,
C. sewer charges,
D. fuel, electricity and other utilities,
E. security deposits pursuant to the leases (including interest
thereon), unless the security deposits are assigned to the Buyer,
F. charges under the service contracts assumed by Buyer (the "Service
Contracts"),
G. laundry income,
H. any other charges incurred with respect to the Property which the
Contributor is obligated to pay,
I. Rents.
1.All rent payments collected as of the Closing Date for the month
of Closing shall be prorated as between the parties as of the
Closing Date.
2.All rent collected after Closing, for any period prior to
Closing, shall belong to Contributor and, if paid to Buyer,
Buyer shall promptly send such rent to the Contributor.
3.All rent collected by the Contributor, prior to the Closing, for
rental periods subsequent to the month of the Closing shall be
paid to Buyer at Closing.
4.All rent collected by Buyer or the Contributor for rental periods
after the month of the Closing shall belong to Buyer and, if
paid to the Contributor, the Contributor shall promptly send
such rent to Buyer.
5. All rent collected after Closing shall be applied first to any
rental delinquencies predating Closing. The foregoing sentence shall survive
Closing hereunder.
Any error in the calculation of adjustments shall be corrected subsequent
to Closing with appropriate credits to be given based upon corrected
adjustments, provided, however, that the adjustments (except if errors are
caused by misrepresentations) shall be final upon expiration of the
sixtieth day after Closing.
The Buyer agrees to use reasonable efforts after the Closing to collect
rental delinquencies owed to the Contributor, provided that nothing herein
shall require Buyer to institute legal proceeding against any resident
whose rental payments are delinquent. Any rents collected after Closing
which are applicable to arrearages which arose prior to Closing shall be
paid by Buyer to Contributor, net of the expenses of collection. If Buyer
fails to collect any rents due to Contributor within 90 days following the
Closing, the Contributor may proceed to collect the same in their own
name. Nothing herein shall make the Buyer liable to the Contributor for
any failure to collect arrearages.
V. COSTS. Buyer shall pay all recording fees, Buyer's attorneys' fees, the
costs of obtaining the Title Commitment (hereinafter defined) and title
policy, the cost of an updated survey, and all other costs and expenses
incidental to or in connection with closing this transaction customarily
paid for by the purchaser of similar property. The Contributor shall pay
any applicable transfer and recordation taxes, attorneys' fees, if any,
incurred by it in connection with this transaction, and all other costs
and expenses incidental to or in connection with closing this transaction
customarily paid for by the seller of similar property.
VI. CONTRIBUTOR'S RECORDS. All records and other information relating to the
Property, whether furnished to Buyer in writing or orally, shall be held
in confidence by Buyer, and shall not be used for any purpose other than
the evaluation of the Property by Buyer and Buyer's attorneys, employees,
agents, engineers, consultants and representatives ("Buyer's Agents"), and
shall not be disclosed, divulged or otherwise furnished to any person or
entity except Buyer's Agents and only for such limited purpose. Buyer
shall take reasonable precautions, contractural or otherwise, to prevent
unauthorized disclosure or misuse of the records by Buyer, Buyer's Agents
or by any other person having access to the records. If this Agreement is
terminated for any reason, Buyer shall endeavor in good faith to return
promptly to Contributor all records (whether available to the public or
not), including all copies of all or any portions thereof, and any
extracts, summaries or analyses furnished by Contributor to Buyer or
Buyer's Agents. This Section shall survive the termination of this
Agreement for any reason, notwithstanding any other provision herein to
the contrary.
VII. CLOSING DOCUMENTS.
A. At the time of Closing, the Contributor shall deliver to Buyer the
following:
(1) A bargain and sale deed without covenants in the form
provided for under the laws of the State of New York (the
"Deed"). Such Deed shall convey the Property to the Buyer
subject to: (i) all zoning and building laws, ordinances,
resolutions and regulations of all governmental authorities
having jurisdiction which affect the Property and the use and
improvement thereof; (ii) all leases identified in the Rent
Roll (hereinafter defined) and others entered into in the
ordinary course of business; (iii) ad valorem real estate
taxes for the current year and subsequent years which are not
yet due and payable; and (iv) easements, covenants,
restrictions, agreements and/or reservations of record, so
long as they do not interfere with the use of the Property
as a rental apartment complex, if any, (v) private, public
and utility easements and roads and highways, if any, and
(vi) and any other exceptions not objected to or waived by
Buyer under Section 9 of this Agreement (collectively, the
"Permitted Exceptions");
(2) A Bill of Sale;
(3) A current rent roll ("Rent Roll") certified, as of the date of
Closing, which shall include a correct list of all tenants, all
rental obligations of each tenant with respect to the Property
and all security deposits (with interest) along with a copy of
all leases shown on the Rent Roll;
(4) An executed assignment of leases, security deposits and
contracts (the "Assignment") in the form attached hereto as
EXHIBIT D. In lieu of an assignment of the security deposits,
the Contributor may provide Buyer with a credit at Closing for
all security held by Contributor (including any accrued
interest, if required by law or contract to be earned thereon)
with respect to all leases encumbering the Property;
(5) Contributor's affidavit stating Contributor's federal taxpayer
identification number and certifying that Contributor is not a
foreign person, corporation, partnership, trust or estate as
defined in the Internal Revenue Code and Regulations thereunder
pursuant to the Foreign Investment in Real Property Tax Act of
1980;
(6) Copies of the personnel files of all employees employed at the
Property and remaining in the employment of the Buyer after the
Closing;
(7) An executed counterpart of the Registration Rights Agreement;
and
(8) Any additional funds, documents and/or instruments as may be
necessary for the proper performance by the Contributor of its
obligations contemplated by this Agreement.
(9) Such other instruments as are customarily executed by Seller
in the county and state where the Property is located to
effectuate the sale of property similar to the Property and
the issuance of the Units and payment of the consideration,
or as may be required under any applicable federal or state
securities laws.
B. At the time of Closing, Buyer shall deliver to Contributor the
following:
(1) An executed counterpart of the Assignment;
(2) Evidence of organization, existence and authority of
Buyer and HME and the authority of each person executing
documents on behalf of each, reasonably satisfactory to
Contributor;
(3) An Amendment to the Buyer's Partnership Agreement in the form
necessary to admit Contributor and Designees as limited
partners of the Buyer and evidencing the issuance of the
Units required pursuant to this Agreement;
(4) An executed counterpart of the Registration Rights Agreement
executed by HME;
(5) Any additional funds, documents and or instruments as may be
necessary for the proper performance by Buyer of its
obligations contemplated by this Agreement;
(6) An opinion of Buyer's counsel in a form reasonably acceptable
to Contributor;
(7) Such other instruments as are customarily executed by Buyer
in the county and state where the Property is located to
effectuate the acquisition of property similar to the
Property, the issuance of the Units and the payment of the
Net Contribution Value, or as may be required under any
applicable federal or state securities laws.
VIII. INSPECTION. Upon and after acceptance of this Agreement by the
Contributor and subject to the remaining provisions of this section, the
Contributor agrees that Buyer and its authorized representatives shall
have the right and privilege to enter upon the Property and the
Contributor's offices, upon reasonable notice, during regular business
hours, subject to the rights of tenants under their leases, for the
purpose of gathering such information and conducting such environmental
and engineering studies or other tests and reviews as Buyer may deem
appropriate and necessary. The Contributor agrees to cooperate with
Buyer by making available to Buyer such records, plans, drawings or other
data as may be in their possession or control relating to the Property and
their operation, including but not limited to prior environmental and
engineering studies. Notwithstanding anything provided herein to the
contrary, any investigation of the Property and or the records by Buyer
and/or Buyer's Agents shall be performed at the sole expense of Buyer and
Buyer shall be solely responsible for the acts of any of Buyer's Agents
brought on or to the Property by Buyer. At least two business days in
advance of any physical inspections, Buyer shall provide Contributor with
evidence of insurance coverage protecting the Property and Contributor
against any loss or liability in connection with the inspection which
insurance shall be reasonably acceptable to Contributor. Furthermore,
Buyer hereby indemnifies, defends and holds Contributor, its partners,
officers, directors, employees, agents, tenants and invitees harmless from
and against any and all claims, demands, liens, expenses, losses, damages,
costs (including, but not limited to, attorneys fees, disbursements and
court costs) and liabilities arising from, or as a result of, any act or
omission of Buyer and/or Buyer's Agents (unless caused by the willful
misconduct or gross negligence of Contributor) during the Due Diligence
Period or any disclosure of confidential information. Buyer's
investigation of Property and the records shall be performed during
reasonable business hours upon reasonable advance notice to Contributor.
Buyer or Buyer's Agents shall not, disrupt: (i) the operation and/or
management of the Property; or (ii) any tenant of the Property. In the
event that Buyer or Buyer's Agents causes any damage to the Property
(which is not attributable to Contributor's willful misconduct or gross
negligence), Buyer shall, at its sole expense, immediately restore the
Property, to the satisfaction of Contributor, to the same condition as it
existed prior to such damage. The provisions of this Section shall survive
the Closing or the termination of this Agreement, as the case may be.
Buyer shall provide to Contributor any third-party reports, tests, studies
or reviews received by Buyer with respect to the Property.
IX. TITLE; TITLE EXAMINATION; OBJECTIONS TO TITLE.
A. Promptly upon execution of this Agreement by all parties, the Buyer
shall order a title commitment (the "Title Commitment") from a
nationally recognized title insurer (the "Title Company").
B. Contributor shall convey the Property to Buyer by Deed, subject to
the Permitted Exceptions. Title to all Other Items purchased
herein, if any, shall be conveyed to Buyer by bill of sale, free
and clear of all security interests, liens and encumbrances, but
subject to any Permitted Exceptions.
C. Within ten (10) days after Buyer's receipt of the Title
Commitment, Buyer shall deliver to Contributor a statement (a
"Statement of Title Defects") of defects, encumbrances or
objections to title or survey matters ("Title Defects"). If Buyer
fails to deliver a Statement of Title Defects on or before the end
of the Due Diligence Period (as hereinafter defined), such failure
shall be deemed to be a waiver of any such Title Defects and
Contributor shall convey title in accordance with this Agreement
and such Title Defects will be additional Permitted Exceptions.
Upon receipt of Buyer's Statement of Title Defects, Contributor
shall have five (5) business days to determine whether it wishes
to attempt to cure any matters shown on such statement. If
Contributor is unable or unwilling to cure or attempt to cure any
such matters, Contributor shall give notice to Buyer within such
five (5) day period, but if no such notice is given, Contributor
shall be deemed to be unwilling to cure any such Title Defects.
If Contributor does not agree to attempt such cure, Buyer shall
have ten (10) days after the expiration of the foregoing five (5)
business day period to terminate this Agreement or to give
Contributor notice that it has elected to take title to the
Property subject to the Title Defects without abatement of the
Contribution Value and such Title Defects will be additional
Permitted Exceptions. If no notice is given by the Buyer within
the ten (10) day period, the Buyer shall be deemed to have
terminated this Agreement. In the event of a termination of this
Agreement under this Section, the Earnest Money shall be promptly
returned to the Buyer, this Agreement shall be null and void and
neither party shall have any further rights and obligations under
this Agreement, except for those that expressly survive
termination.
X. CLOSING DATE. Unless this Agreement is terminated as provided herein, the
Closing shall occur within 15 days after the end of the Due Diligence
Period (the "Closing" or "Closing Date") at the Contributor's office, at
the offices of the Title Company, or by mail, time being of the essence.
XI. POSSESSION. Buyer shall have possession and occupancy of the Property
from and after the date of delivery of the Deed, subject to the rights of
tenants under their leases.
XII. BROKER'S COMMISSION. The Buyer represents to Contributor that it did not
employ any broker in connection with this sale. The Contributor represents
that it employed Select Investors Realty Advisor, as broker (the
"Broker"). Buyer agrees to pay a brokerage commission to the Broker in
the amount of $80,000 The Contributor and Buyer each agree to indemnify
the other for any and all claims and expenses, including legal fees, if
any other fees or commission is determined to be due by reason of the
employment of any other broker by the indemnifying party. This
representation and indemnity shall survive the Closing.
XIII.RISK OF LOSS. The risk of loss or damage to all or part of the Property
by fire or other casualty or by taking by eminent domain, until Closing,
shall be assumed by the Contributor and upon the happening of such event,
Buyer shall have the election of terminating this Agreement without
further liability hereunder, or of completing this purchase and receiving
the Contributor's share of insurance monies, collectible for such loss or
damage, or the award for such taking by eminent domain.
XIV. CONDITIONS PRECEDENT.
A. Buyer shall have thirty (30) days after the date of this Agreement
(the "Due Diligence Period") within which to review and inspect the
Property and the Other Items (including, but not limited to,
performing engineering and Phase I environmental studies), the
Contributor's books and records pertaining to the Property and the
Other Items, matters relating to zoning compliance and compliance by
the Property and the Other Items with other applicable governmental
regulations, the markets in which the Property operates, any service
or other contracts relating to the Property, the tax assessment on
the Property and on comparable properties and such other matters as
Buyer shall deem reasonably necessary or appropriate in connection
with the Property and the Other Items. If Buyer determines that it
does not wish to purchase the Property as a result of its findings
during the Due Diligence Period and notifies the Contributors of
such decision within the Due Diligence Period, the Earnest Money and
any interest thereon shall be promptly returned to the Buyer, this
Agreement shall be null and void and neither party shall have any
further rights or obligations under this Agreement, except for those
that expressly survive termination. Buyer's failure to object
within the Due Diligence Period shall be deemed a waiver by Buyer of
the condition contained in this Section 14(A).
B. It shall also be a condition to Buyer's obligation to close that
during the Due Diligence Period, the Buyer shall obtain the approval
of the Board of Directors (the "Board") of its general partner -
HME, - to the acquisition of the Property on the terms and
conditions described herein. If Buyer does not obtain the Board's
approval within the Due Diligence Period, the Buyer shall promptly
notify the Contributor in which event the Earnest Money and any
interest thereon shall be promptly returned to the Buyer, this
Agreement shall be null and void and neither party shall have any
further rights or obligations under this Agreement, except for those
that expressly survive termination. Buyer's failure to notify the
Contributor within the Due Diligence Period of its failure to obtain
Board approval shall be deemed a waiver by Buyer of the conditions
contained in this Section 14(B).
It is understood that the contingencies set forth in Sections 14(A) and
(B) above are for Buyer's benefit and may be waived by Buyer before
expiration of the Due Diligence Period. If the foregoing contingencies
are not satisfied or waived by the Buyer before expiration of the Due
Diligence Period, the Buyer shall have the right to terminate this
Agreement by written notice to the Contributor.
In the event of a termination under this Section 14, this Agreement shall
be null and void and neither party shall have any further rights or
obligations under this Agreement, except for those that expressly survive
termination.
XV. ENVIRONMENTAL CERTIFICATION. By acceptance of this Agreement, the
Contributor represents, warrants, and certifies to Buyer that except with
respect to remediation of some oil following removal of an underground
storage tank (Spill No. 88-04319) ] it has no knowledge of any violation,
and has received no notice of any violation of any applicable
Environmental Laws (below defined). Except as set forth above, to the
best of Contributor's knowledge, Contributor has not, nor has any other
person, used, generated, stored, dumped, released, buried, dispersed or
emitted any Hazardous Substance on the Property in violation of
Environmental Laws nor are there any underground tanks on the Property,
nor is there a violation of any Environmental Laws with respect to the
current use of the Property. "Environmental Laws" shall mean all federal,
state and local environmental, health, chemical use, safety and sanitation
laws, statutes, ordinances and codes relating to the protection of the
environment and/or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of any
Hazardous Substance and the rules, regulations, and orders with respect
thereto. "Hazardous Substance" means, without limitation, any flammable,
explosive or radioactive material, polychlorinated biphenyl, petroleum or
petroleum product, methane, hazardous materials, hazardous wastes,
hazardous or toxic substances or related materials, as defined in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Sections 9601, ET SEQ.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Appendix Sections
1801, ET SEQ.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. Sections 6901, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601, et seq.), or any other Environmental Law
and the regulations promulgated thereunder applicable on the effective
date of this Agreement. From the date of acceptance hereof to and
including the date of Closing, the Contributor shall immediately provide
Buyer with a copy of any notice, citation, complaint or other directive
from any person, entity or governmental authority whereby the
Contributor's compliance with Environmental Laws is called into question,
and immediately notify Buyer of any new information or other developments
which could tend to supplement or modify the information contained herein.
XVI. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR. The Contributor represents
and warrants to Buyer as of the date hereof and until the Closing, that:
A. To the best of the Contributor's knowledge, the Contributor has no
liability or obligation of any nature which in any way affects or is
related to the Property or the Other Items whether now due or to
become due, absolute, contingent or otherwise, including liabilities
for taxes (or any interest or penalties thereto), which would become
a liability or obligation of Buyer upon Closing pursuant to this
Agreement other than disclosed in this Agreement.
B. To the best of the Contributor's knowledge, there is no litigation,
proceeding or investigation pending, or to the knowledge of the
Contributor threatened, against or affecting the Contributor that
might affect or relate to the validity of this Agreement, any action
taken or to be taken pursuant hereto, or the Property or the Other
Items or any part or the operation thereof, whether or not fully
covered by insurance, except "slip and fall" and similar litigation
covered by insurance, which shall remain Contributor's
responsibility after Closing.
C. To the best of the Contributor's knowledge, except as set forth on
Exhibit E, the Contributor has complied with and is not in default
under, or in violation of, or received any notice that has not been
complied with that the Contributor, the Property or the Other Items
may be in violation of, any law, ordinance, rule, regulation or code
or condition in any approval or permit pursuant thereto (including
without limitation, any zoning, sign, environmental, labor, safety,
health or price or wage control, ordinance, rule, regulation or
order of) applicable to the ownership, development, operation or
maintenance of the Property or the Other Items.
D. To the best of the Contributor's knowledge, there are no written
leases affecting the Property with a term greater than one (1) year.
E. To the best of the Contributor's knowledge, there is no pending
condemnation of the Property, or any part thereof, or of any plans
for improvements which might result in a special assessment against
the Property.
F. Security deposits held by the Contributor will be correctly
identified as of Closing with respect to the Property.
G. This Agreement has been duly authorized, executed and delivered by
Contributor and constitutes a legal and binding obligation of the
Contributor, enforceable against Contributor in accordance with its
terms, except as may be limited by bankruptcy and other laws
affecting creditors' rights generally.
H. Neither the entry into this Agreement, nor the carrying out of the
transactions contemplated herein has resulted or will result in any
violation of, or be in conflict with, or result in the creation of,
any mortgage, lien, encumbrance or charge (other than those
contemplated hereby) upon any of the properties or assets of the
Contributor pursuant to, or constitute a default under, any
certificate of incorporation, by-law, partnership agreement, or
mortgage, indenture, contract, agreement, instrument, franchise,
permit, judgment, decree, order, statute, rule or regulation
applicable to the Contributor or the Property.
I. To the best of the Contributor's knowledge, no consent or approval
by, or authorization of, or filing, registration or qualification
with, any federal, state or local governmental authority, bureau,
department or agency, or any corporation, person or other entity is
required as of the Closing either for the execution, delivery or
performance of this Agreement by the Contributor, or in connection
with the consummation by the Contributor of the transactions
contemplated by this Agreement.
The representations and warranties of the Contributor contained in this
Agreement, the statements in any Exhibit or Schedules attached to this
Agreement, or other instruments furnished to Buyer at or prior to Closing
pursuant to this Agreement, or in connection with the transactions
contemplated pursuant to this Agreement, do not contain any untrue
statements of a material fact, or fail to state a material fact necessary
to make it not misleading.
In the event that Contributor is unable to represent and warrant the
foregoing as of Closing, whether due to an unanticipated event occurring
after the date of this Agreement and prior to Closing or otherwise, then
Buyer shall have the right to terminate this Agreement by written notice
to the Contributor. Buyer's termination right shall be Buyer's sole
remedy for Contributor's failure to make the foregoing representations and
warranties as of Closing. In the event of such a termination, this
Agreement shall be null and void, the Deposit and any interest thereon
shall be promptly returned to the Buyer, and neither party shall have any
further rights or obligations under this Agreement.
The representations of Contributor contained herein are in the
nature of conditions as to which Buyer will satisfy itself during the Due
Diligence Period and none of such representations will survive the
Closing. If Buyer, prior to the Closing Date determines that any of the
Contributor's representations are untrue and in the Buyer's reasonable
judgment materially affects the value of the transaction contemplated
under this Agreement, then, the Buyer may either: (i) elect to terminate
this Agreement by notice given to Contributor; or (ii) to waive any such
untrue representation and proceed to close. If Buyer elects to close on
this Agreement, the representations will be deemed waived at the Closing.
Contributor shall not be liable or bound for any verbal or written
statements, representations, real estate brokers' set-ups or information
pertaining to the Property furnished by any real estate broker, agent,
employee, servant or any other person unless the same are specifically set
forth herein.
The representations and warranties contained herein shall not survive
delivery of the deed and shall merge therein.
XVII.REPRESENTATIONS AND WARRANTIES OF BUYER AND OF HME. Buyer and HME
represent and warrant to the Contributor as of the date hereof until the
Closing:
A. Buyer is and will be as of the date of Closing duly organized,
validly existing and in good standing under the laws of the State of
New York and has all the requisite power and authority to enter into
and carry out this Agreement according to its terms.
B. Subject to the receipt of the approval of the Board as referenced in
Section 14B of this Agreement, this Agreement has been duly
authorized, executed and delivered and constitutes a legal and
binding obligation of Buyer, enforceable in accordance with its
terms, except as may be limited by bankruptcy and other laws
affecting creditors' rights generally.
C. To the best of its knowledge after due inquiry, there is no
litigation, proceeding or investigation pending, or to the knowledge
of Buyer threatened, against or affecting Buyer or the partners of
Buyer that might affect or relate to the validity of this Agreement
or any action taken or to be taken pursuant hereto, or that might
have a material adverse effect on the business or operations of the
Buyer.
D. With respect to this Agreement, the Registration Rights Agreement
and an amendment to the Second Amended and Restated Agreement of
Limited Partnership of Buyer to be executed at Closing whereby the
Contributor and/or its designees are admitted as limited partners to
Buyer (the "Partnership Agreement Amendment") (this Agreement, the
Registration Rights Agreement and the Partnership Agreement
Amendment are collectively, the "Acquisition Agreements")
i. no provision of the Acquisition Agreements nor the performance of
any obligation thereunder by Buyer or HME ("Buyer" and "HME" are
collectively the "Entities") is barred, limited, restricted, or
rendered incapable of performance by any provision of law or of
governmental regulation, or by the by-laws or certificate of
incorporation of HME or by the Partnership Agreement of Buyer;
nor upon due inquiry, to the best of Buyer's knowledge, by the
provisions of any indenture, agreement or other instrument to
which either of the Entities is party or is otherwise bound;
ii. upon due inquiry, to the best of Buyer's knowledge, no
unobtained consent, authorization or approval or any court, or of
any federal, state or local governmental or quasi-governmental
authority, body, board or administrative agency is necessary to
authorize or approve the execution, delivery and performance of
the Acquisition Agreements by the Entities, or the consummation
of the transactions contemplated thereby; and
iii. the execution and delivery of the Acquisition Agreements, the
performance of the terms therein set forth and the consummation
of the transactions thereby contemplated, are not in conflict
with and do not constitute a breach of, or a default under, the
certificate of incorporation or by-laws or Partnership Agreement
of the Entities, as the case may be, or any material agreement,
indenture, mortgage, deed of trust or other instrument known to
Buyer to which the Entities are a party or by which either of
them is bound, or any law, administrative regulation or order of
any court of governmental agency or authority known to Buyer
applicable to the Entities.
E. Buyer and HME have obtained each and every consent, approval, permit
or order of, and have made each and every filing with, any
individual, partnership, corporation, trust or other entity,
government agency or political subdivision required to be obtained
or made in connection with (A) their execution, delivery and
performance of this Agreement and (B) their consummation of the
transactions contemplated hereby. This Agreement is the legal,
valid and binding obligation of the Buyer and HME, enforceable in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws affecting the
enforcement thereof or relating to creditors' rights generally.
F. HME has filed all forms, reports, schedules, proxy materials,
registration statements and related prospectuses and supplements and
other documents required to be filed by HME with the Securities and
Exchange Commission ("SEC") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), for the year ended
December 31, 1996 and 1997 and for calendar years 1998 and 1999
through the date hereof (collectively, the "SEC Documents") and will
cause to be delivered to Contributor copies of such additional
documents as may be filed with the SEC by HME between the date
hereof and the Closing Date. The SEC documents were, and those
additional documents filed between the date hereof and the Closing
Date will be, prepared and filed in all material respects in
compliance with the rules and regulations promulgated by the SEC,
and do not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading. No
material event has occurred since the date of HME's most recent
report filed with the SEC which would be required to be disclosed in
a document filed with the SEC.
G. The consolidated financial statements included in the SEC Documents
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the period involved
(except as may be indicated in the notes thereto or, in the case of
unaudited statements, as permitted by Form 10-Q) and present fairly
(subject in the case of unaudited statements, to normal, recurring
year-end audit adjustments) the consolidated financial position of
the Buyer or HME, as applicable, at the dates thereof and the
consolidated results of operations and cash flows for the periods
then ended.
H. Since March 31, 2000 there has not been:
i. any material adverse change in the financial condition or results
of operations of HME from that reflected in the financial
statements as of March 31, 2000 included in the SEC Documents
referred to herein, or any material adverse change in the
business, assets or prospects of HME (including the imposition of
any material adverse regulatory requirements or the loss of any
material permits licenses or franchises);
ii. there has not been any material damage, destruction or other
casualty loss with respect to property owned or lease by HME not
covered by insurance; and
iii. HME has not conducted its business otherwise than in the
ordinary course.
I. Since March 31, 2000:
i. There has not been any material adverse change in the financial
position or results of operations of the Buyer from that
reflected in the financial statements as of March 31, 2000, or
any material adverse change in the business, assets or prospects
of Buyer (including the imposition of any material adverse
regulatory requirements or the loss of any material permits
licenses or franchises);
ii. there has not been any material damage, destruction or other
casualty loss with respect to property owned or lease by Buyer
not covered by insurance; and
iii. Buyer has not conducted its business otherwise than in the
ordinary course.
J. HME is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland, has full right,
power and authority to enter into this Agreement and to assume and
perform all of its obligation and is duly qualified to do business
in the states in which it is required to do so. Subject to Board
approval as referenced in Section 14B, the execution and delivery of
this Agreement and the performance by HME of its obligations under
this Agreement will require no further action or approval of HME's
shareholders or Board of Directors, or of any other individuals or
entities in order to constitute this Agreement as a binding and
enforceable obligation of HME.
K. The entry into, performance of, or compliance with this Agreement by
HME has not resulted, and will not result, in any violation of,
default under, or acceleration of any provision of the bylaws or
declaration of trust of HME or any provision of, or result in the
acceleration of or entitle any party to accelerate (whether after
the filing of notice or lapse of time or both) any obligation under,
or result in the creation or imposition of any lien, charge, pledge,
security interest or other encumbrance upon any of the property of
HME pursuant to any provision of any mortgage, lien, lease,
agreement, license or instrument, or violate any law, regulation,
order, arbitration award, judgment or decree to which HME is a party
or by which it or its property is bound or violate or conflict with
any other material restriction of any kind or character to which HME
is subject.
L. As of June 1, 2000, the authorized shares of common stock of all
classes of HME consisted of 80,000,000 shares of par value $.01 per
share, and all of such shares are initially classified as "Common
Shares" and the issued and outstanding Common Shares of HME
consisted of 20,503,054 Common Shares.
M. As of the Closing, the Common Shares issuable upon conversion of the
Units will have been duly and validly authorized by HME and will
have been duly reserved for issuance upon such conversion. The
Common Shares issuable upon conversion of the Units, when issued
upon such conversion in accordance with their terms, will be validly
issued, fully prepaid and nonassessable. The holders of outstanding
shares of capital stock of HME are not entitled to any preemptive or
other rights to subscribe for Common Shares or securities
convertible into Common Shares, except that certain parties have
been given the right to acquire additional shares of HME's Series C
and Series D Preferred Stock, which is convertible into Common
Shares.
The representations and warranties of the Buyer and of HME contained in
this Agreement, the statements in any Exhibit or Schedules attached to
this Agreement, or other instruments furnished to Contributor at or prior
to Closing pursuant to this Agreement, or in connection with the
transactions contemplated pursuant to this Agreement, do not contain any
untrue statements of a material fact, or fail to state a material fact
necessary to make it not misleading.
In the event that Buyer and HME are unable to represent and warrant the
foregoing as of Closing, whether due to an unanticipated event occurring
after the date of this Agreement and prior to Closing or otherwise, then
Contributor shall have the right to terminate this Agreement by written
notice to the Buyer and to retain the Earnest Money unless the inability
to make a representation as of Closing relates to subparagraphs (C)
(relating to litigation that might have a material adverse effect on the
Buyer only), (H) and (I) above in this Section 17, in which event upon
termination by the Contributor the Earnest Money shall be promptly
returned to the Buyer. Contributor's termination right and retention of
the Earnest Money as described in the preceding sentence shall be
Contributor's sole remedy for Buyer's and HME's failure to make the
foregoing representations and warranties as of Closing. In the event of
such a termination, this Agreement shall be null and void and neither
party shall have any further rights or obligations under this Agreement.
The representations and warranties contained herein shall not survive
delivery of the deed and shall merge therein.
XVIII. ASSIGNMENT. This Agreement, and all or any portion of the rights of
Buyer hereunder, may not be assigned by Buyer. Notwithstanding the above,
this Agreement, and all or any portion of the rights of Buyer hereunder,
may be assigned by Buyer to an entity wholly owned by Buyer with the
prior written consent of the Contributor, which shall not be unreasonably
withheld.
XIX. NOTICE. All notices given pursuant to any provisions of this Agreement
shall be in writing and shall be effective only if delivered personally,
or sent by registered or certified mail, postage prepaid or sent by a
national over-night carrier, or by telecopy with confirmation of receipt
to the addresses set forth below:
To the Contributor: S & S Realty
c/o Steven A. Schneider
124 Cedarhurst Ave.
Cedarhurst, New York 11516
Telecopy No: (516) 374-7697
With a copy to: Marvin Levine, Esq.
Blackwell Sanders Peper Martin
13710 FNB Parkway
Omaha, Nebraska 68154
Telecopy No: (402) 964-5115
To Buyer: HOME PROPERTIES OF NEW YORK, L.P.
Attn: Norman Leenhouts, Chairman
850 Clinton Square
Rochester, New York 14604
Telecopy No.: (716) 546-5433
With a copy to: Robin L. Stein, Esq.
Home Properties of New York, L.P.
850 Clinton Square
Rochester, New York 14604
Telecopy No.: (716) 232-3147
Notices shall be deemed delivered upon actual delivery or refusal of
delivery by the recipient.
XX. PLANS. The Contributor agrees to provide Buyer with all plans and
architectural drawings in its possession for the improvements completed at
the Property, including, without limitation, all "as-built" plans in its
possession and the Contributor further agrees that it will endeavor to
make the same available to Buyer for inspection at the Contributor's
office or at the Property during the Due Diligence Period and to turn over
the same to Buyer at Closing.
XXI. APPLICABLE LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of New York.
XXII. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement
between the parties, and any and all prior understandings or agreements,
whether written or oral, are hereby merged into this Agreement. This
Agreement cannot be modified except by a written instrument signed by the
parties hereto.
XXIII. BINDING AGREEMENT. This Agreement shall not be binding or effective
until properly executed by Buyer and the Contributor.
XXIV. CONFIDENTIALITY. By execution of this Agreement and except as otherwise
provided herein, prior to the Closing and in the event of a termination
without Closing, each of the Contributor and Buyer agree to keep any and
all information with respect to the transactions contemplated by this
Agreement strictly confidential, and will not disclose any such
information, without the other's prior written consent. Buyer may disclose
the existence of this Agreement to the extent necessary to conduct its due
diligence with respect to the Property. This Agreement shall not be
recorded.
XXV. CONTRIBUTOR COVENANTS.
A. After Closing, Contributor will reasonably cooperate in Buyer's
efforts to comply with SEC reporting requirements. The Contributor
will provide access by Buyer's representatives, to all financial and
other information relating to the Property as is sufficient to
enable them to prepare audited financial statements, at Buyer's
expense, in conformity with Regulation S-X of the Securities and
Exchange Commission (the "Commission") and any registration
statement, report or disclosure statement required to be filed with
the Commission.
B. Prior to the Closing Date, the Contributor shall continue to fulfill
all of its obligations under the terms of the leases encumbering the
Property and under the Service Contracts and the Contributor shall
operate, maintain and repair all landscaping, buildings, fixtures
and facilities in accordance with normally accepted business
principles and operate the Property in a commercially reasonable
manner with standards and procedures of no less quality than those
currently in place.
C. The Contributor covenants that it shall not sell, transfer or assign
the Units or the shares of common stock into which the Units can be
converted for a period of one (1) year following the Closing Date
(the "Lock-Up Period") and that any Designees shall agree to be
bound by this restriction. The obligations of this subparagraph
25(C) shall survive Closing hereunder.
XXVI.PRE-TRANSFER LIABILITIES. Buyer agrees to assume only those liabilities
with respect to the Property as are specifically described herein,
including the Permitted Exceptions.
XXVII. BUYER COVENANTS.
A. For a period of ten (10) years from and after the Closing Date (the
"Restricted Period"), the Buyer shall permit Contributor, upon
demand, from time to time to provide a "bottom guaranty" of some of
the Buyer's non-recourse debt, such guaranty to be in an amount up
to $1,400,000. The "bottom" portion means that portion of the non-
recourse debt that is first satisfied from repayment following
default, pursuant to foreclosure, or deed in lieu of foreclosure, or
otherwise.
The initial non-recourse debt with respect to which Contributor may
provide a bottom guaranty shall be that Multifamily Note, dated
April 26, 2000 in the original principal amount of $15,400,000 from
the Buyer to Manufacturers and Traders Trust Company. The Buyer
agrees that in the event the initial non-recourse debt is paid off
during the Restricted Period, the substitute non-recourse debt made
available to Contributor for a bottom guaranty shall have a loan to
value ratio of not more than 60% and the substitution non-recourse
debt shall have a principal balance of no less than $10.0 million at
the time the substitute bottom guaranty shall be provided.
B. In the event that Contributor: (i) obtains a tax free step-up in
the basis of its Units for federal income tax purposes; (ii) sells,
transfers or otherwise disposes of its Units in a taxable
transaction; (iii) receives a tax payment from Buyer in
reimbursement of taxes triggered to Contributor as the result of the
sale, transfer, or other disposition of all of the Property during
the Restricted Period or as a result of the Buyer's failure to
provide the Contributor with non-recourse debt on which to provide a
bottom guaranty in an amount up to $1,400,000; or (v) receives an
allocation under Treasury Reg. Section 1.704-3(b) using the
traditional method without curative allocations that reduces the
amount of Built-in-Gain (as defined below), then the bottom guaranty
shall be commensurately reduced. For purposes of this Agreement,
Built-in-Gain shall mean with respect to the Property the amount of
gain that would be allocated to the Contributor under Section 704(c)
of the Internal Revenue Code if the Property were disposed of in a
fully taxable transaction. The obligations of this subparagraph
27(A) shall survive Closing hereunder.
C. During the Restricted Period, the Buyer covenants that it shall not
sell, exchange, transfer or otherwise dispose of the Property unless
such transaction occurs in a manner as to be tax free to the
Contributor and any Designees. The obligations of this subparagraph
27(B) shall survive Closing hereunder.
XXVIII. HME COVENANTS. As further consideration for Contributor entering into
this Agreement, and for the benefit of Home Properties and HME, HME
covenants that HME shall at all times reserve and keep available out of
its authorized but unissued Common Shares such number of its Common Shares
as shall from time to time be sufficient to effect the conversion of the
Units in accordance with the terms hereof. If at any time the number of
authorized but unissued Common Shares shall not be sufficient to effect
the conversion of all Units into Common Shares, HME will take such action
as may be necessary to increase its authorized but unissued Common Shares
to such number of shares as shall be sufficient for such purpose.
XXIX.EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected
thereon as the signatories.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be
executed as of the day and date first above written.
BUYER:
HOME PROPERTIES OF NEW YORK, L.P.
By: Home Properties of New York, Inc.
Its general partner
By:
------------------------------------------
HME:
HOME PROPERTIES OF NEW YORK, INC.
By:
------------------------------------------
CONTRIBUTOR:
S & S REALTY
By:
------------------------------------------
Carol Schneider
By: Julius Schneider Testamentary Trust
By:
------------------------------------------
Steven Schneider, Trustee
By:
------------------------------------------
Ethel Schneider, Trustee
By:
------------------------------------------
Arthur Fishman, Trustee
<PAGE>
FIRST AMENDMENT TO CONTRIBUTION AGREEMENT
THE FIRST AMENDMENT TO CONTRIBUTION AGREEMENT (this "FIRST AMENDMENT") is
dated as of September ______, 2000 by and between S & S REALTY, a New York
general partnership ("CONTRIBUTOR"), HOME PROPERTIES OF NEW YORK, L.P., a New
York limited partnership ("BUYER"), and HOME PROPERTIES OF NEW YORK, INC., a
Maryland corporation ("HME").
RECITALS
WHEREAS, Contributor, Buyer, and HME are the parties to that certain
Contribution Agreement dated June 22, 2000 (the "CONTRACT") wherein Contributor
agreed to contribute its interest in that certain real property described in
EXHIBIT A attached hereto and incorporated herein by reference (the "PROPERTY")
in exchange for limited partnership interests in the Buyer; and
WHEREAS, Contributor, Buyer, and HME desire to modify certain terms of the
Contribution Agreement as more fully set forth herein.
NOW, THEREFORE, in consideration of the Contribution Agreement, of the
mutual promises and covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby mutually
acknowledged, Buyer, Contributor, and HME do hereby agree as follows:
I. INCORPORATION OF RECITALS. The above Recitals are hereby
incorporated and made a part of this First Amendment as if more
fully set forth herein.
II. CONTRIBUTION VALUE. The Aggregate Contribution Value, as defined in
section 3(A) of the Contribution Agreement, is hereby reduced to Two
Million Nine Hundred Fifty Thousand and No/100 Dollars
($2,950,000.00).
III. ADDITIONAL EARNEST MONEY. Buyer hereby agrees to deposit the
Additional Earnest Money, in the manner required by Section 3(B) of
the Contribution Agreement, not later than three days following the
execution of this First Amendment.
IV. CONDITION OF PROPERTY. Buyer shall accept possession of the
Property on the Closing Date "As Is," with no right of set-off or
reduction in the Aggregate Contribution Value, with respect to: (i)
Property's environmental condition and compliance with applicable
city, county, state or federal statutes, codes or ordinances; (ii)
any violations referenced in that certain "Violations Search"
prepared by the town of Islip, New York, and dated June 26, 2000,
which is attached hereto as EXHIBIT B and incorporated herein by
reference; and (iii) the absence of an effective Building Division
Rental Permit issued by the Town of Islip, New York. With respect
to the above, Buyer specifically acknowledges that Buyer is NOT
relying on any representations or warranties of any kind whatsoever,
express or implied, from the contributor. Buyer is relying solely
upon its own inspection of the Property with regard to the above-
referenced matters, and not upon any representations made to it by
any person whomsoever concerning such matters.
V. RATIFICATION. Except as amended hereby, the Contract remains in
full force and effect and is hereby confirmed and ratified by
Contributor, Buyer, and HME.
VI. DEFINED TERMS. Any capitalized term used herein but not defined
herein shall have the meaning therefore specified in the Contract.
VII. EXECUTION. To facilitate execution of this First Amendment, this
document may be circulated by facsimile. A facsimile copy shall be
considered an original signature.
VIII. COUNTERPARTS. This First Amendment may be executed in counterparts
and it is the intention of the parties hereto that any executed
counterpart shall constitute the agreement of the parties and that
all of the counterparts shall together constitute one and the same
agreement of the parties.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Contributor, Buyer, and HME have executed this First
Amendment as of the date first above written.
CONTRIBUTOR:
S & S REALTY, a New York general partnership,
By:
-------------------------------------
Carol Schneider
By: Julius Schneider Testamentary Trust
By:
-------------------------------------
Steven Schneider, Trustee
By:
-------------------------------------
Ethel Schneider, Trustee
By:
-------------------------------------
Arthur Fishman, Trustee
BUYER:
HOME PROPERTIES OF NEW YORK, L.P., a
New York limited partnership
By: Home Properties of New York, Inc., a
Maryland corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
HME:
HOME PROPERTIES OF NEW YORK, INC., a
Maryland corporation
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
