Exhibit 1
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REAL ESTATE PURCHASE AGREEMENT
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AMBASSADOR TOWERS APARTMENTS
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This purchase agreement ("Agreement" or "Contract"), made and entered into
by and between Realmark Property Investors Limited Partnership-III, a Delaware
limited partnership ("Seller") and XXX Apartments, Inc. ("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 known as Ambassador Towers
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
$8,650,000.00 ("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 $100,000.00
Cash at closing (subject to
prorations and allocations per
Section 5) $8,500,000.00
Total $8,650,000.00
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, impositions and similar
encumbrances affecting the Real Property will be discharged or, if annual 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 a nationally recognized title company selected by
Buyer (the "Title Company"), as Escrow Agent (the "Escrow Agent"), within two
(2) business 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 $150,000.00 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 45 days
after expiration or satisfaction of Buyer's financing contingency per Section
3(b) below, 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.
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(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 (30) days after Seller's execution of this Agreement (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. 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 its lease audit, financial inspection and
physical review within the first fifteen (15) days of the Due Diligence Period.
All third party reports must be ordered within said first fifteen (15) day
period.
If the Closing of the Property does not occur, Buyer will make such
repairs as necessary to leave the Property in 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 to Buyer by overnight mail or delivery service at the
address of Buyer provided in Section 17 below (except as set forth in any
individual item below), 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
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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. Copy of the latest insurance declaration covering the
Property (the same may be within a master policy)
9. Income information in Seller's possession for all
tenants currently leasing units at the Property. Said
information to be available at the Property.
10. 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. Tenant leases shall available at the
property
11. 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 be submitted to Buyer by Seller by overnight mail or
delivery at the address of Buyer provided in Section 17 below within two (2)
days after execution of this Agreement by both parties, except for those matters
which will be available at the Property as set forth above.
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 it receives immediately upon their
completion and availability to Buyer.
(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.
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(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, 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.
(b) This Agreement is contingent upon Buyer obtaining a mortgage
commitment satisfactory to Buyer in its sole discretion within sixty (60) days
after execution of this Agreement. Buyer shall apply promptly for such
commitment and shall pursue same with good faith and due diligence. Buyer's
formal application for a commitment shall be submitted along with all fees due
at such time and documentation within Buyer's Due Diligence Period as set forth
in Section 3(a) above. If Buyer is unable to obtain such commitment within the
time period set forth above, either party may thereafter terminate this
Agreement and the Xxxxxxx Money shall be returned to Buyer.
SECTION 4. DEED AND TITLE.
(a) Seller shall deliver to Buyer at Closing, a special or
limited warranty deed (or bargain and sale deed, where appropriate) ("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 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
to examine the Title Commitment and inform Seller of Buyer's objection to any
exception contained in or title defect revealed by the Title Commitment.
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(c) If Buyer's examination of the Title Commitment 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.
Notwithstanding the foregoing, however, in order to terminate the Contract, an
objectionable exception or defect must be one which renders title unmarketable
and uninsurable because of such specified objection or defect, or the specified
objection or defect shall be materially inconsistent with the present use of the
Property as an apartment complex.
(d) Seller will pay for preparation of the Deed for the Real
Property, and for one-half of State and local transfer taxes, if any.
(e) Buyer will pay for any title insurance commitment, title
insurance premiums, for any updated survey of the Property, the recording of the
Deed for the Property, and for one-half of State and local transfer taxes, if
any.
(f) Seller and Buyer will each pay their own attorney's fees.
SECTION 5. PRORATIONS AND ALLOCATIONS.
(a) Collected rents, real estate taxes, 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 tax year in which the transaction is consummated will
be prorated as to the Property as of the date of the Closing.
(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.
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
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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, and in the event that the
cost of repair or restoration shall be greater than the insurance or
condemnation proceeds and the deductible under Seller's insurance policy, then
Seller shall pay to Buyer the difference between (a) such proceeds and
deductible and (b) the cost of repairs or restoration. Notwithstanding the
foregoing, in no event shall the Seller be obligated to pay in excess of
$10,000.00 under the preceding sentence.
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 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
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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 twelve (12)
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.
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(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) To the best of the actual knowledge of Seller (which
knowledge shall be limited to Xxxxxx X. Xxxxxx, or Xxxxxxxx X. Xxxxxx) no toxic
or hazardous substances or wastes, pollutants or contaminants (including without
limitation, asbestos, urea formaldehyde, the group of organic compounds known as
polychlorinated biphenyls, petroleum products including gasoline, fuel oil,
crude oil and various constituents of such products, and any hazardous substance
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. Section 9601-9657, as amended) have
been generated, treated, stored, released or disposed of, or otherwise placed,
deposited in or located on the Real Property, nor has any activity been
undertaken on the Real Property that would cause or contribute to (i) the Real
Property to become a treatment, storage or disposal facility within the meaning
of, or otherwise bring the property within the ambit of the Resource
Conservation and Recovery Act of 1965("RCRA", 42 U.S.C. Section 6901 et seq., or
any similar state law or local ordinance, (ii) a release or threatened release
of toxic or hazardous wastes or substances, pollutants or contaminations, form
the Property within the meaning of, or otherwise bring the Real Property within
the ambit of, CERCLA, or any similar state law or local ordinance, or (iii) the
discharge of pollutants or effluents into any water source or system, the
dredging or filling of any waters or the discharge into the air of any
emissions, that would require a permit under the Federal Water Pollution
Contract Act, 33 U.S.C. Section 1251 et seq., or the Clean Air Act, 42 U.S.C.
Section 7401 et. seq., or any similar state or local ordinance. To the best
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knowledge of Seller (limited to Xxxxxx X. Xxxxxx or Xxxxxxxx X. Xxxxxx) there
are no substances or conditions in or on the Real Property that may support a
claim or cause of action under RCRA, CERCLA or any other federal, state or local
environmental statutes, regulations, ordinances or other environmental
regulatory requirements. Seller has disclosed to Buyer all environmental reports
and studies with respect to the Realm Property which are in Seller's possession.
(j) Seller shall from the date hereof until Closing, operate its
business on the Real Property in the same manner as it has been operating and in
the ordinary course of business. Further, Seller shall commence and prosecute in
a timely manner all legal actions required or desirable in order to protest the
ad valorem taxes relating to the Personal Property, Real Property, or both.
After Closing, Buyer shall be substitute as the party-in-interest in such legal
proceedings as to any taxes that Buyer is obligated to pay under this Purchase
Agreement or otherwise, and Buyer shall be entitled to such benefits or refunds
incurred in any legal proceedings, relating to taxes that Buyer is obligation to
pay under this Agreement or otherwise. Notwithstanding the foregoing, however,
as a condition of Seller signing any such claim or substituting Buyer as the
party in interest, Buyer agrees that Seller shall reimburse for any expenses,
disbursements or costs of any kind which Seller has previously paid and will
assume all obligations for any such expenses, disbursements or other obligations
including any obligation for legal fees incurred in connection with such
proceedings. It is a further condition of such assignment and substitution that
any professional to have been engaged to carry on such proceedings shall release
the Seller from any further obligations relative thereto.
Seller shall indemnify, defend and hold Buyer harmless from any claim,
demand, loss, liability, damage or expense (including reasonable attorney's
fees), suffered or incurred because of the breach of any of the above
representations and warranties, whether such breach is discovered before or
after Closing. The above representations and warranties shall survive the
Closing 12 months. Except as herein above and expressly stated, Buyer is
purchasing the Personal Property and Real Property based on its own
investigation and inquiry and is not relying on any representation of Seller or
any other person and is agreeing to accept and purchase the Personal Property
and Real Property "as is", subject to the conditions of examination and express
warranties herein contained,
SECTION 9. NON-PERFORMANCE.
(a) If Seller fails to deliver the Deed or meet any of the
conditions hereof willfully, 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.
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(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 payable
to Xxxxxxxxxx Investments of Dayton, Ohio.
Buyer represents and warrants to Seller that no other broker,
consultant or agent is due a commission or fee from the proceeds of the Closing
claiming by, through or under Buyer, 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.
(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.
This provision shall not be applicable until after the expiration of Buyer's Due
Diligence Period and/or Buyer's finance contingency period, except that during
Buyer's Due Diligence Period and finance contingency period, Seller shall
deliver to Buyers any such leases or agreements entered into during Buyer's Due
Diligence Period or during Buyer's finance contingency, and notwithstanding
anything to the contrary in this Purchase Agreement, Buyer's Due Diligence
Period and/or its financing contingency shall not expire until the later of (i)
such period as defined in Section 3(a) or 3(b) above, or (ii) two business days
after Buyer's receipt of such leases or agreement.
(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.
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. Upon any such assignment approved
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by Seller, the assignee shall assume the obligations of Buyer. Seller's consent
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. A party is "affiliated" as used in this paragraph if it is a parent or
subsidiary of Buyer or is owned or controlled by Xxxxxxx X. Xxxxx.
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) due to Seller's ownership or operation of
the Property 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: XXX Apartments, Inc.
Xxx Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Copy to: Xxxx Xxxxxx, Esq.
Xxxxxxxxxx & Xxxxx
1100 International Centre
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
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Seller: Realmark Property Investors Limited Partnership-III
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 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 New York law, except for matters of title or real estate
law which shall be governed by the laws of the state in which the Property is
located.
SECTION 20. 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.
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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 _______________, 2001
By:
----------------------------
SELLER:
Executed _______________, 2001
By:
----------------------------
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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