Exhibit 1
REAL ESTATE PURCHASE AGREEMENT
CARRIAGE HOUSE APARTMENTS
This purchase agreement ("Agreement" or "Contract"), made and
entered into by and between Realmark Property Investors Limited Partnership,
0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Seller") and Xxxxxxx Xxxxxx, on
behalf of an entity to be named and without personal liability, 0000 Xxxxxxx
Xxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000 ("Buyer").
RECITALS:
A. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, a certain parcel of real property and all of the improvements and
buildings situated thereon, and the hereditaments and appurtenances thereto (the
"Real Property"), consisting of an apartment complex containing 145 residential
apartment units known as Carriage House Apartments, and all personal property,
equipment, fixtures and intellectual property (excluding, however, any use of
the name "Realmark" or any related or similar name, it being understood that
only the right, title and interest of Seller to the name of the apartment
complex shall be transferred and excluding computer equipment and software),
owned by Seller, utilized in the operation or management of the apartment
complex, and located at said apartment complex (collectively the "Personal
Property"). The Real Property together with the Personal Property applicable to
the apartment complex will be herein referred to as the "Property".
B. Attached hereto and made a part hereof is the legal description of
the Real Property, marked with the name of the apartment complex and attached as
Exhibit A. A detailed list of the Personal Property is attached to this
Agreement as Exhibit B. Any subsequent amendment to either Exhibit A or Exhibit
B, or to any other Exhibit to this Agreement, is to be considered an integral
part of this Agreement.
FOR AND IN CONSIDERATION of the mutual promises, covenants and
agreements, hereinafter set forth, the Parties agree as follows:
SECTION 1. PURCHASE PRICE.
(a) The purchase price to be paid Seller for the Property is
$4,100,000.00 "Purchase Price") to be paid in the following manner:
Xxxxxxx Money at signing of
Purchase Agreement $50,000.00
Additional Xxxxxxx Money after
expiration of Due Diligence Period 50,000.00
Cash at closing (subject to
prorations and allocations per
Section 5) $4,000,000.00
Total $4,100,000.00
and payable by Buyer on closing of title and delivery of the Deed ("Closing") in
immediately available good, federal funds.
(b) All existing debt, liens, (other than tax liens)
impositions and similar encumbrances affecting the Real Property will be
discharged or, if annual real estate taxes or special assessment liens, prorated
in accordance with Section 5 and paid at the Closing.
(c) The Xxxxxxx Money in the amount stated in Section 1 (a)
above will be deposited with Transnation Title Insurance Company (the "Title
Company"), as Escrow Agent (the "Escrow Agent"), within two (2) days from the
date of Seller's execution of this Agreement. Absent any contrary provision of
this Agreement, the total Xxxxxxx Money in the amount of $100,000.00 will remain
on deposit with the Escrow Agent until the Closing of the Property or
cancellation of escrow. If the Xxxxxxx Money deposit is not made by the date or
dates as herein above set forth, Seller may terminate this Agreement. Interest
on the Xxxxxxx Money shall follow the principal sum on any payment or refund.
Upon any permitted termination of this Agreement by Buyer, including but not
limited to the failure of the conditions precedent set out in Section 7, the
Xxxxxxx Money shall be returned to Buyer upon demand, and in compliance with all
other terms and provisions of this Agreement.
SECTION 2. PLACE AND TIME OF CLOSING.
(a) Subject to the conditions precedent set forth herein
having been met or waived, the Closing will take place on or before 60 days
after execution of this Agreement by both parties, unless extended as otherwise
set forth in this Agreement, time being of the essence. As used herein the term
"Closing" will mean the meeting of the parties at which delivery of the Deed and
payment of the Purchase Price as called for in Section 1 occurs for the
Property. It is specifically agreed that should Buyer extend the finance
contingency in this Agreement or in any of the Agreements referenced in Section
3(c) below, closing shall likewise be extended in this Agreement and in the
other agreements a like number of days only.
(b) This Agreement, as an offer to purchase when signed by
Buyer, shall automatically terminate if not accepted in final form by Seller by
5 P.M., Eastern Standard Time, within five (5) business days from the date on
which Buyer executed this Agreement as indicated below.
SECTION 3. PURCHASER'S CONTINGENCIES.
(a) Due Diligence. Buyer, or its designees, will have a period of
thirty-five (35) days from the later of (1) the date of the last party's
execution of this Agreement or (2) the date of delivery by Seller to Buyer of
the items listed in (i) below (except for those items which are made available
at the Property as designated by Seller (the "Due Diligence Period"), to enter
the Property to make inspections, engineering tests, surveys, and other such
tests, examinations and inspections as Buyer may desire as long as such tests,
examinations, etc., do not unreasonably interfere with the operations or any
current use of the Property. Seller shall cooperate in all reasonable respects
with Buyer in connection with such tests and inspections. All entry upon the
Property and any and all contact with on site employees of Seller by Buyer shall
be upon prior notice to Seller and, at Seller's option, accompanied by an agent
of Seller.
Buyer agrees to complete a lease audit, financial inspection and
physical review within the first twenty (20) days of the due diligence. All
third party reports must be ordered within said first twenty (20) day period and
evidence of such orders supplied to Seller. Notwithstanding the foregoing, Buyer
shall still have the right to terminate this Agreement for any reason throughout
the entire Due Diligence Period.
If the Closing of the Property does not occur, Buyer shall restore the
Property to the same condition as prior to entry by Buyer.
(i) During the Due Diligence Period, Buyer may inspect the
Property. At the signing of this Agreement or within two (2) days thereafter,
Seller shall provide or make available at designated locations, those
operational and information items which relate to the Property as follows:
1. Current Rent Roll - (Dated within 30 days of
execution)
2. Operating Statements for the last two (2) calendar
years
3. Operating Statement for the current calendar year to
date (as of the end of the month previous to
execution)
4. Breakdown of the Property's payroll account including
a list of on-site personnel, for the last calendar
year and for the current calendar year to date
5. Copy of current ad valorem tax bills and a condensed
list of utility bills for the Property, for the last
full calendar year if in Seller's possession
6. As-built survey, if in Seller's possession
7. Copies of all third-party contracts (e.g., termite,
landscape, pool maintenance, etc.) in effect or which
will be in effect at or after the closing date
8. Copies of all notices of zoning, building, safety,
health code or other violations relating to the
property in Seller's possession
9. Copy of the latest insurance declaration covering the
Property (the same may be within a master policy)
10. Make available to Buyer all income information in
Seller's possession for all tenants currently leasing
units at the Property.
11. Make available originals or copies of all tenant
leases for the Property in connection with each
apartment unit, and all credit reports and other
information concerning the leases or the tenants
which are currently in Seller's files
12. A list of all equipment leases and/or any financing
documents for personal property, equipment, etc.,
affecting the apartment complex
All of the foregoing will either be at the Property location or submitted to
Buyer by Seller within two (2) days after execution of this Agreement by both
parties.
All Due Diligence materials must be maintained by Buyer or its attorneys or
agents on a confidential basis and returned to Seller if Buyer terminates this
Agreement. Buyer agrees that it will not use the Due Diligence materials for any
purpose other than to determine whether to acquire the Property and agrees that
it will not make contact with Seller's tenants unless closing occurs. In
addition, Buyer agrees that it will under no circumstances make any offer, or
use the Due Diligence materials, to acquire the interest of any partner(s) of
the selling entities or the current fee owner or its affiliates for a period of
two (2) years after the date of this Contract. Buyer and/or its agents will not,
under any circumstances, disclose to any of Seller's employees that it is
contemplating acquisition of the Property without Seller's written consent prior
to closing. All reports desired by Buyer during its Due Diligence Period shall
be ordered by Buyer at Buyer's expense, but Buyer agrees that it will supply
copies to Seller of each and every report if Buyer does not close on its
acquisition of the Property.
(ii) During the Due Diligence Period, Buyer will conduct a
review of the economics and feasibility of acquiring and operating the Property,
including any inspection of all zoning and other government permits and
regulations and all other matters and documents relating to the operation of the
Property, including the items supplied by Seller under Section 3(a) hereof.
(iii) After Seller provides all required documents to the
Buyer, Buyer agrees to accept or reject the Property and all documents prior to
the end of the Due Diligence Period. If Buyer does not cancel this Contract
during the Due Diligence Period by notice to Seller, Buyer shall be deemed to
have accepted the Property and it will close on the Property in accordance with
this Contract, except for cancellation in accordance with the specific
provisions of this Contract, including title and/or survey objections as set
forth below.
This Agreement is contingent upon Buyer and Seller closing the sale and
purchase of Foxhunt Apartments, Camelot East Apartments, Brookshires and
Countrybrook Apartments, which are the subject of Agreements executed
simultaneously herewith. In the event either party fails to close any of said
transactions or this transaction, the other party shall have the right to refuse
to close any or all of the other transactions. Said failure to close shall
include failure to close as a result of any reason, whether or not arising out
of breach, failure of contingency or otherwise. Provided said failure to close
is for a valid reason and not due to breach by buyer, all deposits should be
returned to buyer and neither party shall have any further liability to the
other.
SECTION 4. DEED AND TITLE.
(a) Seller shall deliver to Buyer at Closing, a Bargain and
Sale Deed, Special Warranty Deed or a Covenant Deed ("Deed") in a form
reasonably acceptable to Buyer, conveying good and marketable fee simple title
to the Real Property, subject only to such easements, restrictions of record and
title exceptions set forth in the commitment for title insurance specifically
approved by Buyer, and taxes not delinquent. In addition, Seller shall convey
title to the Personal Property to Buyer, free and clear of all liens and
encumbrances (except those disclosed and deemed approved during due diligence;
e.g., equipment leases or personal property financing documents), by the
execution and delivery at Closing of a Xxxx of Sale in form and substance
reasonably satisfactory to Buyer, without warranty, except as to Seller's title.
(b) Seller agrees to provide a copy of its most recent
existing title insurance policy or title insurance commitment to Buyer. Buyer
shall then obtain at Buyer's expense an ALTA Form B Title Insurance Commitment
(the "Title Commitment"), within fifteen (15) days of the date of execution of
this Contract by both parties, issued by a title insurance company selected by
Buyer, committing to insure fee simple title to the Property in the amount of
the Purchase Price for such Property in Buyer's name, with all standard
exceptions removed (except for the rights of tenants under unrecorded leases
and/or except for standard exceptions normally not removed pursuant to local
custom with respect to the Real Property), and containing no other exceptions
not specifically approved by Buyer. Buyer will provide a copy of said title
commitment to Seller within 5 days after same is completed, but no later than 20
days after signing this Agreement. Buyer shall have ten (10) days after receipt
of the Title Commitment to examine the Title Commitment and the existing survey
provided by Seller to Buyer to inform Seller of Buyer's objection to any
exception contained in or title defect revealed by the Title Commitment or the
existing survey. It is understood that Buyer also intends to obtain an updated
survey of the Property. Buyer shall have the right to object to any new matters
shown on the updated survey, but Buyer shall have no right to object if the
updated survey does not reveal any objectionable exceptions. In no event shall
Buyer have the right to object to any matters on the updated survey after the
expiration of forty-five (45) days from the execution of this Agreement.
(c) If Buyer's examination of the Title Commitment or the
survey reveals that the Title Commitment for the Real Property contains
objectionable exceptions or that the title to the Real Property is defective and
thereafter, the issuing title insurance company refuses to delete the
objectionable exceptions or the defects cannot be cured within a reasonable
period of time after written notice by Buyer, specifically pointing out the
objection/defects, then Buyer may elect to terminate this Agreement upon written
notice to Seller.
(d) Seller will pay for preparation of the Deed for the Real
Property, for State and local transfer taxes.
(e) Buyer will pay for any updated survey of the Property for
the title insurance commitment and for all title insurance premiums, and for the
recording of the Deed for the Property.
(f) Seller and Buyer will each pay their own attorney's fees.
SECTION 5. PRORATIONS AND ALLOCATIONS.
(a) Collected rents, laundry income, service contracts,
equipment leases or other personal property financing, utility deposits,
insurance and other expenses whether or not a lien, assessed or to be assessed
for the year in which the transaction is consummated will be prorated as to the
Property as of the date of the Closing. All utility bills relating to the period
prior to the Closing Date shall be paid by Seller. Seller shall terminate al
utility relationships with respect to the Property as of the Closing Date.
(b) Security deposits held by Seller or paid by any lessees at
the Property will be transferred to Buyer in full at Closing, including any
interest earned thereon and payable to the Tenant under State law.
(c) Real Estate taxes and personal property taxes and special
assessments shall be prorated based on the custom in Xxxxxxxxxx County, Ohio,
under the short form proration method.
SECTION 6. CONDEMNATION OR CASUALTY. Seller agrees to give Purchaser
prompt written notice of any fire or other casualty occurring to all or any
portion of the improvements at the Real Property and/or Personalty between the
date hereof and the date of closing. If prior to the closing, there shall occur:
(i) damage to the improvements at the Property caused by fire
or other casualty which would cost 5% of the Purchase Price of the Property or
more to repair based on the estimate of a reputable third party contractor
chosen by Seller; or
(ii) the taking or condemnation of all or any portion of the
Real Property and/or the improvements as aforesaid as would materially interfere
with the use thereof; then, if any of such events set forth in (i) or (ii) above
occurs, Buyer or Seller, at its option, may terminate its obligations under this
Agreement by written notice given to the other within seven (7) days after Buyer
has received the notice referred to above or at the closing, whichever is
earlier. If Buyer or Seller does not elect to terminate its obligations as
aforesaid, the closing shall take place as provided herein without an abatement
of the purchase price (except that Buyer shall be allowed a credit for any
deductible under Seller's insurance) and there shall be assigned to the Buyer at
closing, all interest of the Seller in and to any insurance proceeds or
condemnation awards which may be payable to Seller on account of such
occurrence.
If, prior to the closing, there shall occur:
(i) damage to the Property caused by fire or other casualty
which would cost less than 5% of the Purchase Price of the Property based on the
estimate of a reputable third party contractor chosen by Seller to which Buyer
has no reasonable objection; or
(ii) the taking or condemnation of all or any portion of the
said Real Property and/or improvements as aforesaid which is not material to the
use, thereof; then, if any of such events set forth in (i) or (ii) above occurs,
Buyer shall have no right to terminate its obligations under this Agreement, but
there shall be assigned to Buyer at closing all interest of Seller in and to any
insurance proceeds or condemnation awards which may be payable to Seller on
account of any such occurrence, and in addition, Buyer shall be allowed a credit
for any deductible under Seller's insurance policy.
Seller shall be responsible for maintaining fire and extended
coverage insurance prior to closing as is currently in place.
SECTION 7. CONDITIONS. The following shall be conditions precedent to
Buyer's obligations hereunder, unless specifically waived in whole or in part in
writing by Buyer:
(a) Litigation. There being no existing or pending claims,
lawsuits, or governmental proceedings, or appeals, which challenge Seller's
title to the Property.
(b) Title Insurance Policy. Title to the Property at Closing
being marketable or insurable (Buyer agrees to request that the title company
issuing the title commitment list any questions of marketability in the title
commitment) and/or in accordance with the provisions of Section 4 above, free
and clear of all liens and encumbrances. In addition, Buyer receiving assurances
at Closing from the title insurance company issuing the Title Commitment, that
after Closing, Buyer will be issued at Seller's expense, an ALTA Form B Title
Insurance Policy, with all standard exceptions removed, except as set forth in
Section 4 above, and all other exceptions validly objected to by Buyer deleted
from such policy, insuring fee simple marketable title to the Property or in
accordance with Section 4 above, in the amount of the Purchase Price, in Buyer's
name, free and clear of all liens and encumbrances not otherwise specifically
agreed to by Buyer prior to Closing.
(c) Personal Property. Seller conveying title to the Personal
Property to Buyer at Closing free and clear of all liens and encumbrances
(except for equipment leases and personal property financing disclosed during
due diligence) by a Xxxx of Sale without warranties except as to title in form
and substance reasonably satisfactory to Buyer.
(d) Compliance With Representations and Warranties. Seller
will be in substantial compliance with all other representations and warranties
made herein in Section 8, or elsewhere in this Agreement, at Closing to the
reasonable satisfaction of Buyer.
(e) The condition of the Personal Property and Real Property
shall be in substantially the same condition at closing as they were at end of
the Buyer's Due Diligence Period.
With respect to all of the foregoing, to the extent that they are
representations and warranties of Seller, they are made to the best of Seller's
knowledge and belief without independent investigation at this time.
SECTION 8. SELLER'S WARRANTIES. The following representations and
warranties of Seller shall survive the Closing for a period of six (6) months.
(a) The legal description of the Property contained in the
recitals to this Agreement is substantially correct and will be confirmed by any
survey obtained by Buyer and/or confirmed by the title company.
(b) To Seller's best knowledge and belief, Seller has not
received written notification that the Property is not in compliance with any
federal, state, county and municipal laws, ordinances and regulations, including
but not limited to all federal, state, county and municipal environmental laws
and regulations, applicable to or affecting the Property, subject to Seller's
right to cure as hereinabove stated.
(c) Seller will convey fee simple, marketable or insurable
title to the Property to Buyer at Closing and will convey title to the Personal
Property to Buyer at Closing by Xxxx of Sale, in form and substance reasonably
satisfactory to Buyer, free and clear of all liens and encumbrances.
(d) Seller will not interfere with Buyer's opportunity to hire
Seller's on-site employees who work at the Property, but Buyer will have no
obligation to hire any of those individuals. Buyer will make no efforts to hire
such employees until after all contingencies have been removed and no earlier
than 10 days before closing.
(e) Seller shall be responsible for (and Buyer shall not
assume the obligation of) all employee wages, benefits (including payments for
accrued bonuses, vacation or sick pay, unemployment compensation, employment
taxes, medical claims or similar payments), contributions under any benefit
programs or agreements, severance pay obligations and other related employee
costs arising as a result of any events, acts (or failures to act) prior to the
Closing Date with respect to the Property at which such persons are employed,
whether or not disclosed on the schedules to this Agreement.
(f) Seller retains all liability and responsibility for
fulfilling all federal and/or state COBRA and continuation of group health
insurance coverage requirements (pursuant to Section 4980B of the Code, sections
601-608 of ERISA, and any applicable state laws) with respect to Seller's
current or former employees (and their dependents). Buyer does not hereby and
will not at the Closing of the Property assume any obligation to provide medical
insurance coverage to persons that it employs because it acquires the Property.
(g) The physical condition of the Personal Property and Real
Property shall be maintained in substantially the same condition as they were at
the expiration of Buyer's due diligence period through the Closing Date.
(h) Seller has title to the property, or the right to acquire
same, has the authority to enter into this Agreement, is entering into this
Agreement with the knowledge of the current owner and has the authority to sign
all documents required to be signed to implement Seller's obligations under this
Agreement.
(i) True, correct and complete copies of the Tenant Leases,
including all amendments and documents relating thereto, have been delivered or
made available to Buyer pursuant to this Agreement, each Tenant Lease is in full
force and effect and not in default (except as may be evident from the rent roll
to be delivered at closing) and no events have occurred which, with notice or
the passage of time, or both, would constitute such a default; the Lessor in the
Tenant Leases has substantially performed all of its obligations under each
Tenant Lease; and the Tenant Leases have not been modified nor have any
concessions been made with respect thereto unless expressly described in the
rent roll to be delivered pursuant to this Agreement at closing. Notwithstanding
the foregoing, Seller may notify Buyer if any of the foregoing are inapplicable
or untrue as of the Closing Date and provided that Seller has otherwise
substantially complied with this Agreement and has operated the Property in the
ordinary course, no adjustment or other remedy shall be imposed on Seller
relative to the foregoing representation. True and complete copies of all
service contracts and other corollary agreements and all amendments thereto have
been delivered to Buyer pursuant to the Due Diligence material supplied by
Seller under this Agreement.
(j) Neither this Agreement nor anything provided to be done
herein by Seller including without limitation the conveyance of all of Seller's
right, title and interest in and to the Property as herein contemplated,
violates or will violate any contract, agreement or instrument to which the
Seller is a party or bound and which affects the Property. Seller has and will
have at the Closing Date the power and authority to sell the Property to Buyer
and perform its obligations in accordance with the terms and conditions of this
Agreement, and each person who executes this Agreement and all other instruments
and documents in connection herewith, has or will have due power and authority
to so act.
(k) All vacant apartment units as of end of Buyer's due
diligence period shall, at Seller's option, either (i) be in rent ready
condition at closing, or (ii) entitle Buyer to a credit of $400.00 per unit. In
either event, if any of said vacant units are "down" units, i.e.; are
substantially unfit for occupancy, Seller agrees to restore said units to rent
ready condition notwithstanding the foregoing sentence. The foregoing shall not
be applicable to units becoming vacant after the expiration Buyer's due
diligence period, which units will be "as is" at closing.
SECTION 9. NON-PERFORMANCE.
(a) If Seller fails to deliver the Deed, perform its
obligations hereunder, or meet any of the conditions hereof, Buyer, at Buyer's
sole option, may (i) terminate this Agreement whereupon the Xxxxxxx Money shall
be returned to Buyer on demand or (ii) Buyer may bring an action for specific
performance, and if Buyer prevails, all reasonable costs and expenses of any
such action shall be paid by Seller as a reduction of the Purchase Price, or
(iii) bring an action for monetary damages. The foregoing shall be the sole and
exclusive remedies of Buyer. However, if Buyer elects to bring an action for
monetary damages, they shall be specifically limited, if proven, to an amount
equal to the Xxxxxxx Money on deposit as set forth hereinabove. Any damages
resulting from a breach of any warranty or representation either before or after
Closing shall be subject to the same limitation and aggregated with any damages
for breach of this Agreement as set forth above. The foregoing sentence shall
not be applicable with respect to fraud, or any material intentional
misrepresentation.
(b) If Buyer defaults at any time, Seller and Buyer agree that
it will be extremely difficult or impractical to fix Seller's actual damages.
Therefore, in such an event, the entire Xxxxxxx Money shall be delivered to
Seller as liquidated damages for loss of a bargain and not as a penalty. Buyer
will then be released from all liability to Seller related to this Agreement,
such liquidated damages being Seller's sole remedy.
SECTION 10. BROKERS, AGENTS AND CONSULTANTS. Seller represents and
warrants to Buyer that no broker, consultant or agent is due a commission or fee
from the proceeds of the Closing, claiming by, through or under Seller except as
stated herein, and Seller hereby agrees to indemnify and hold harmless Buyer
from the claims of any agent, consultant or broker for the payment of any such
commission or commissions. Seller shall be responsible for commissions to the
Xxxxxxxxxx Investments.
Buyer represents and warrants to Seller that no broker, consultant or
agent is due a commission or fee from the proceeds of the Closing claiming by,
through or under Buyer except the Xxxxxxxxxx Investments, whose commission shall
be paid by Seller, and hereby agrees to indemnify and hold harmless Seller and
the Property from the claims of any other agent, consultant or broker for the
payment of any commission, finder's fee or other compensation.
SECTION 11. LEASES/ASSIGNMENT OF INTANGIBLES.
(a) Seller agrees that prior to the Closing it will not enter
into any long term commercial leases or service agreements without the prior
written consent of Buyer which will not be unreasonably withheld or delayed.
(b) Seller shall assign the existing tenant leases to Buyer at
Closing along with all service contracts and other agreements affecting the
Property. Buyer shall execute an assumption agreement or other agreements with
respect to all tenant leases and service contracts or other agreements from and
after the date of closing.
(c) On the Closing Date, Seller shall assign to Buyer all of
its right, title and interest in and to: (a) all licenses and permits then held
by the Seller for the Property which may be lawfully assigned and which may be
necessary or desirable, in Buyer's opinion, to operate the Property; (b) any
warranties and guaranties from manufacturers, suppliers and installers
pertaining to the Property including roof warranties and warranties covering
appliances within the Property apartment units; (c) the name "Carriage House
Apartments" and all variations thereof; (d) the telephone number(s) for all of
Seller's telephones installed at the Property; (e) all architectural draws,
plans and specifications and other documents in Seller's possession pertaining
to the construction of the Property; and all other intangible property at the
Property. The foregoing shall not include any computer equipment or software
whatsoever.
SECTION 12. INSURANCE. Seller will cancel its insurance coverage on the
Property effective at Closing of the Property, and Buyer will place new
insurance coverage on the Property effective on the same date.
SECTION 13. ASSIGNMENT. Buyer shall not have the right to assign this
Agreement, in whole or in part, to any party with whom it is not affiliated
without the express written consent of Seller. Buyer shall have the right to
assign this Agreement to any affiliate of Buyer without such consent. Upon any
such assignment, the assignee shall assume the obligations of Buyer. Seller's
consent, if required, pursuant to this section shall be in its sole discretion
and shall include approval of all proposed assignment documents. In accordance
with the foregoing, the Buyer shall have the right to assign to an entity with
which the Buyer is affiliated provided the Buyer herein remains liable for
performance of this Contract.
SECTION 14. ENTIRE AGREEMENT. All prior understandings and agreements
of the parties are merged herein, and this Agreement reflects the entire
understanding of the parties. This Agreement may not be changed or terminated
orally.
SECTION 15. SUCCESSORS AND ASSIGNS. The terms of this Agreement shall
be binding upon and inure to the benefit of the parties hereto, their respective
legal representatives, successors and assigns.
SECTION 16. INDEMNIFICATIONS.
(a) SELLERS INDEMNITY. Seller shall indemnify, defend and hold
Buyer harmless from any claim, demand, loss, liability, damage, or expense
(including reasonable attorneys' fees) in connection with third-party claims for
injury or damage to personal property in connection with the ownership or
operation of the Properties prior to Closing. These indemnification obligations
of Seller shall be repeated at and shall survive the Closing.
(b) BUYERS INDEMNITY. Buyer shall indemnify, defend and hold
Seller harmless from any claim, demand, loss, liability, damage, or expense
(including reasonable attorneys' fees), due to Buyers operation of the Property
from and after Closing. The indemnification obligations of Buyer shall be
repeated at and shall survive the Closing.
SECTION 17. NOTICES. All notices required or permitted hereby shall be
in writing and delivered either in person or sent electronically, and by
national overnight express carrier. Notices shall be deemed to have been given
when sent as follows:
Buyer: Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Copy to: Xxxx X. Xxxxxxxxx, Esq.
Jaffe, Raitt, Heuer & Xxxxx
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Seller: Realmark Property Investors
Limited Partnership
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Copy to: Xxxxxxx X. Xxxxxxx, Esq.
Andrews, Sanchez, Amigone,
Mattrey & Xxxxxxxx, LLP
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
SECTION 18. CONSTRUCTION. Time shall be construed to be of the essence.
SECTION 19. GOVERNING LAW. This Agreement will be governed by and
construed according to Ohio law.
SECTION 20. BUYER'S LIABILITY. Neither Buyer nor any assignee or
designee of Buyer shall be personally or individually liable with respect to any
obligations under this Agreement, all such personal liability and individual
liability, if any, being hereby waived by Seller on its behalf and on behalf of
all parties claiming by or through Seller.
SECTION 21. ESCROW. The Escrow Agent hereby acknowledges receipt of the
Xxxxxxx Money and agrees to hold the same in escrow until the closing or sooner
termination of this Agreement and shall pay over and apply the proceeds thereof
in accordance with the terms of this Agreement. If, for any reason, the closing
does not occur and either party makes a written demand upon the Escrow Agent for
payment of the Xxxxxxx Money, 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 five (5) business
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 five (5) day period, or if for any reason the Escrow Agent in good
faith shall elect not to make such payment, the Escrow Agent shall continue to
hold the Xxxxxxx Money until otherwise directed by written instructions from the
parties to this Agreement or until a final judgment (beyond any applicable
appeal period) by a Court of competent jurisdiction is rendered disposing of
such Xxxxxxx Money.
The Escrow Agent shall be liable as a depository only and its
duties hereunder are limited to the safekeeping of the Xxxxxxx Money and the
delivery of same in accordance with the terms of this Agreement. The Escrow
Agent will not be liable for any act or omission done in good faith, or for any
claim, demand, loss or damage made or suffered by any party to this Agreement,
excepting such as may arise through or be caused by the Escrow Agent's
negligence or willful misconduct.
In any action involving the parties, Buyer acknowledges that Escrow
Agent may represent Seller.
IN WITNESS WHEREOF, this Agreement has been executed by the parties, or
by the duly authorized officer of the parties, on the day and year shown below.
BUYER:
Executed 11/7, 2000
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On behalf of an entity to be formed without personal liability
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
SELLER:
Executed 11/13, 2000
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By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
RECEIPT OF ESCROW AGENT
The undersigned hereby acknowledges receipt of the Xxxxxxx Money provided for
herein, and that the same is being held as Escrow Agent pursuant to the terms of
the above Purchase Agreement.
as Escrow Agent
By:
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