Exhibit 1
FINAL
REAL ESTATE PURCHASE AGREEMENT
ANDOVER PARK APARTMENTS
This purchase agreement ("Agreement" or "Contract"), made and
entered into by and between Willow Creek/Realmark Limited Partnership, 0000
Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Seller") and Princeton
Acquisition LLC, 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 215 residential
apartment units known as Andover Park 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
$5,200,000.00 ("Purchase Price") to be paid in the following manner:
Xxxxxxx Money at signing of Purchase Agreement $ 125,000.00
Promissory Note for the difference between
$5,075,000.00 and the balance of the first mortgage
at closing (subject to prorations and allocations per
Section 5) and by assumption of Seller's existing
first Mortgage balance at closing $5,075,000.00
Total $5,200,000.00
and payable by Buyer on closing of title completion of escrow and delivery of
the Deed ("Closing") in immediately available good, federal funds.
The Promissory Note to be delivered by Buyer to Seller shall bear
interest at 7% per annum until paid in full. A principal payment of $125,000.00
shall be due on April 30, 2001 and the whole principal balance and all accrued
interest shall be paid in full on May 31, 2001.
(b) All existing debt (except the first mortgage to be
assumed), 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 Xxxxxx, Xxxxxxx et. al. (Attention: W. Xxxxxxx
Xxxxx) (the "Escrow Agent") on March 30, 2001. Absent any contrary provision of
this Agreement, the total Xxxxxxx Money in the amount of $125,000.00 will remain
on deposit with the Escrow Agent until the Closing of the Property and escrow
requirements are completed 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 March 31,
2001, 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 to the Escrow Agent and payment of the
Purchase Price as called for in Section 1 occurs for the Property.
(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, March 31, 2001.
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SECTION 3. PURCHASER'S CONTINGENCIES.
(a) Entry On The Property. All entry upon the Property and any and all
contact with any employees of Seller by Buyer shall be upon prior notice to
Seller and, at Seller's option, accompanied by an agent of Seller. Requests for
entry upon the property or to contact any employees of Seller shall be initiated
only through Xxxxx Xxxxxxxxxx or Xxxxxx Xxxxxxxxxxx and shall be conducted in
strict conformance with the restrictions in this Agreement and specifically this
Section 3 and Section 8(d).
Buyer has completed a lease audit, financial inspection, and physical
review of the Property.
If the completion of escrow of the Property does not occur, Buyer shall
restore the Property to the same condition as prior to entry by Buyer.
All Due Diligence materials previously delivered to Buyer or made
available to Buyer must be maintained by Buyer or its attorneys or agents on a
confidential basis and returned to Seller if Buyer terminates the escrow
contemplated by this Agreement. Buyer agrees that it will not use any Due
Diligence materials previously delivered or made available for any purpose other
than to have determined whether to acquire the Property and agrees that it will
not make contact with Seller's tenants until the conditions of the escrow are
completed. 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 completion of the escrow conditions. Buyer will make no contact
with any of Seller's employees before completion of the escrow conditions
without Seller's express written consent; except for contacts with Seller's
employees allowed under Section 8(d) and except for contacts within three (3)
days of completion of the escrow conditions in connection with takeover of the
Property. All reports desired by Buyer during its Due Diligence Period were
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 complete the escrow
conditions of its acquisition of the Property.
(ii) Buyer has conducted 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.
(b) Financing. Buyer agrees to apply for approval of the
assumption by Buyer of Seller's existing first Mortgage held by Key Commercial
Mortgage, with the approximate current balance of $3,934,162.62, bearing
interest at the rate of 8.32% and due and payable in full August 2010. Buyer has
submitted financial information and management profile/credentials to Seller.
Buyer agrees to make a complete application for such approval in good faith
during the escrow period after closing. Buyer will process said application with
due diligence and comply with all reasonable requests of said holder. Seller
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agrees to cooperate with Buyer's application. Buyer shall be responsible for all
expenses incurred in obtaining such approval and for any transfer fees payable
to said holder. Buyer and Seller agree to execute such documents as may be
reasonably required by said holder to complete said application and to confirm
the assumption by Buyer of said mortgage loan. If said approval is not obtained
by Buyer within twenty (20) days after delivery of the Deed in escrow, either
party may terminate the Escrow upon written notice to the other, in which event
the Deposit shall 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 the Escrow Agent at Closing, a
Bargain and Sale Deed, Special Warranty Deed or Covenant Deed ("Deed") in a form
reasonably acceptable to Buyer, conveying good and marketable fee simple title
to the Real Property, subject only to the existing first mortgage, and 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 the first mortgage
and those disclosed and deemed approved during due diligence; e.g., equipment
leases or personal property financing documents), by the execution and delivery
to the Escrow Agent 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 has provided a copy of its most recent existing
title insurance policy or title insurance commitment to Buyer. Seller shall then
obtain at Buyer's expense an ALTA Form B Title Insurance Commitment (the "Title
Commitment"), within five (5) 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. Seller will provide a copy of said title commitment to Buyer within 5
days after same is completed. Buyer shall have five (5) 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 ten (10) 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
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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 the Escrow upon written
notice to Seller.
(d) Seller will pay for preparation of the Deed for the Real
Property, and 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, interest on the first Mortgage being
assumed, 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 completion
of escrow requirements. All utility bills relating to the period prior to the
completion of escrow shall be paid by Seller. Seller shall terminate all utility
relationships with respect to the Property as of the completion of escrow. Buyer
shall pay Seller cash for all escrows held by the existing mortgage holder and
transferred to Buyer at completion of Escrow.
(b) Security deposits held by Seller or paid by any lessees at
the Property will be transferred to Buyer in full at completion of escrow,
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 Greenville, South Carolina.
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 completion of escrow. If prior to the completion of
escrow, 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
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Agreement and the escrow 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 completion of escrow 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 completion of escrow 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
completion of Escrow 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 except the
existing first mortgage. In addition, Buyer receiving assurances at completion
of escrow from the title insurance company issuing the Title Commitment, that
after completion of escrow, Buyer will be issued at Buyer'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 completion of escrow.
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(c) Personal Property. Seller conveying title to the Personal
Property to Buyer at Closing free and clear of all liens and encumbrances
(except for the existing first mortgage and for equipment leases and personal
property financing disclosed during escrow) 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 completion of
escrow to the reasonable satisfaction of Buyer.
(e) The condition of the Personal Property and Real Property
shall be in substantially the same condition at completion of escrow as they
were at execution of this Agreement.
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 completion of escrow 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 completion of escrow and will convey title to
the Personal Property to Buyer at completion of escrow by Xxxx of Sale, in form
and substance reasonably satisfactory to Buyer, free and clear of all liens and
encumbrances, except as provided in this Agreement.
(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 completion of escrow. Buyer will make no efforts to hire any
of Seller's off-site employees whatsoever.
(e) Seller shall be responsible for (and Buyer shall not
assume the obligation of) all employee wages, benefits (including payments for
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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
completion of escrow 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 completion of escrow 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 execution of this Agreement through the completion of escrow.
(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 completion of escrow) 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 completion of escrow.
Notwithstanding the foregoing, Seller may notify Buyer if any of the foregoing
are inapplicable or untrue as of the completion of escrow 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 completion of escrow the power and authority to sell the Property to
Buyer and perform its obligations in accordance with the terms and conditions of
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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 completion of
escrow shall either (i) be in rent ready condition, or (ii) entitle Buyer to a
credit of $400.00 per unit at completion of escrow. If any of said vacant units
are "down" units, i.e.; are substantially unfit for occupancy, Buyer agrees to
identify such down units and to negotiate an agreement with Seller as to any
such down units prior to satisfaction of Buyer's finance contingency as set
forth in Section 3 above. If no such agreement is reached, Seller will have no
further liability for such down units. The foregoing shall not be applicable to
units becoming vacant after the expiration of Buyer's finance contingency, which
units will be "as is" at completion of escrow; however, Seller will give Buyer a
credit of $400.00 per vacant unit for any unit becoming vacant between the end
of Buyer's finance contingency and completion of escrow, provided that if Buyer
violates the provisions of Section 3(a), or Section 8(d), Buyer will forfeit any
and all credits provided for in this subsection (k).
(l) Seller agrees to continue its standard leasing practices
and advertising through the completion of escrow, including its customary rent
schedule for new tenants, customary credit and application review and
procedures, customary security deposits , and customary concessions, if any.
SECTION 9. NON-PERFORMANCE.
(a) If Seller fails to deliver the Deed, perform its
obligations hereunder, or meet any of the conditions hereof at completion of
escrow, 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 completion of escrow 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
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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
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 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 completion of escrow 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
completion of escrow 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 completion of escrow.
(c) On the completion of escrow, 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 "Andover
Park 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 completion of escrow 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
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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 completion of escrow. These indemnification
obligations of Seller shall be repeated at and shall survive completion of
escrow.
(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 completion of escrow. The indemnification obligations of Buyer
shall be repeated at and shall survive completion of escrow.
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: Princeton Acquisition LLC
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
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Seller: Willow Creek/Realmark Limited Partnership
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Copy to: Xxxxxxx X. Xxxxxxx, Esq.
Amigone, Sanchez, 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 South Carolina 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 completion of
escrow 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 completion of escrow 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 Deed shall be delivered to Escrow Agent on or before March 31,
2001. Said Deed shall be released for recording after satisfaction of Buyer's
finance contingency and deposit of the balance of the cash due at completion of
escrow in accordance with this Agreement, whereupon the deed and other closing
documents shall be released for delivery and/or recording. Completion escrow for
all purposes in this Agreement shall be deemed to have occurred upon the
foregoing occurrences and the availability of Assumption Agreement between
Seller, Buyer and the holder of the first mortgage for recording, but in no
event later than 15 days after reversal or satisfaction of Buyer's finance
contingency.
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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 3/30, 2001
Princeton Acquisition LLC
By: /s/ Xxxxxxx Xxxxxx
------------------
SELLER:
Executed 3/30, 2001
By: /s/ 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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FIRST AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
OF ANDOVER PARK APARTMENTS
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
OF ANDOVER PARK APARTMENTS (hereinafter the "Agreement") is made and entered
into by and between WILLOW CREEK/REALMARK LIMITED PARTNERSHIP ("Seller") and
ANDOVER PARK APARTMENTS, successor in interest to PRINCETON ACQUISITION, LLC
("Buyer").
WHEREAS, Buyer and Seller entered into the Agreement on or about March
30, 2001; and
WHEREAS, Buyer and Seller wish to amend and clarify certain terms and
provisions in the Agreement.
NOW, THEREFORE, Seller and Buyer further agree as follows:
1. Paragraph 3(b) of the Agreement is amended to extend the time for
submission of Buyer's full application to the holder of the first mortgage until
Monday, April 30, 2001. Said full application shall include biographical
information on Xxxxxxx Xxxxxx, principal of the Buyer including two (2) years
income tax returns, and a pro forma financial statement for the Project. The
time for obtaining approval from the holder of the first mortgage is extended
until May 14, 2001. All other terms and conditions of Section 3(b) are otherwise
confirmed and ratified.
WILLOW CREEK/REALMARK LIMITED PARTNERSHIP
By: Realmark Property Investors Limited Partnership-IV, General Partner
By: Realmark Properties, Inc., its General Partner
By: _____________________________________________
ANDOVER PARK APARTMENTS LIMITED PARTNERSHIP
By: _____________________________________________
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SECOND AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
OF ANDOVER PARK APARTMENTS
THIS SECOND AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT OF ANDOVER PARK
APARTMENTS (hereinafter the "Agreement") is made and entered into this _____ day
of August, by and between WILLOW CREEK/REALMARK LIMITED PARTNERSHIP ("Seller")
and ANDOVER PARK APARTMENTS, successor in interest to PRINCETON ACQUISITION, LLC
("Buyer").
WHEREAS, Buyer and Seller entered into the Agreement on or about March
30, 2001 regarding Andover Park Apartments; and
WHEREAS, Buyer and Seller entered into a First Amendment to Real Estate
Purchase Agreement of Andover Park Apartments.
NOW, THEREFORE, Seller and Buyer further agree as follows:
1. Seller agrees to credit Buyer at closing the sum of Thirty-Five
Thousand Five Hundred Dollars ($35,500.00) representing an agreed upon credit
for vacancies and down units at the premises being purchased by Buyer. Seller
and Buyer agree that this shall be the final credit for vacancies and down units
and that the premises are otherwise being sold "as is."
2. All other terms and conditions of that Agreement and the First
Amendment are otherwise confirmed and ratified.
WILLOW CREEK/REALMARK LIMITED PARTNERSHIP
By: Realmark Property Investors Limited Partnership-IV, General Partner
By: Realmark Properties, Inc., its General Partner
By: _____________________________________________
ANDOVER PARK APARTMENTS LIMITED PARTNERSHIP
By: Andover Park GP, LLC, General Partner
By: _____________________________________________
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