EXHIBIT 1
6/4/2003
REAL ESTATE PURCHASE AGREEMENT
INDUCON EAST PHASES I, II AND III
This purchase agreement ("Agreement" or "Contract"), made and entered
into by and between Realmark Property Investors Limited Partnership-V, 0000
Xxxxx Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Seller") and Acquest Development, LLC,
on behalf of an entity to be named, 000 Xxxxx Xxxxxx, Xxxxxxx, XX 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 office/warehouse complex containing
approximately 210,000 square feet of space known as Inducon East, Phases I, II,
III, 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 office park shall be transferred and excluding computer
equipment and software), owned by Seller, utilized in the operation or
management of the office park, and located at said office park complex
(collectively the "Personal Property"). The Real Property together with the
Personal Property applicable to the office park 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 office park 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
$1,600,000.00, over and above the balance of the first mortgage to be assumed,
("Purchase Price") to be paid in the following manner:
Xxxxxxx Money at signing of
Purchase Agreement $ 50,000.00
Xxxxxxx Money after expiration
of due diligence and financing
contingency 50,000
Cash at closing (subject to prorations and
allocations per Section 5), and by assumption of
Seller's existing first mortgage
balance at closing 1,500,000.00
plus balance of
existing 1st Mortgage
and payable by Buyer on closing of title and delivery of the Deed ("Closing") in
immediately available good, federal funds.
(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 Xxxxxxx X. Xxxxxxx, Esq., 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 fifteen (15) 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. ENTRY ON THE PROPERTY/PURCHASER'S CONTINGENCIES.
(a) Environmental Due Diligence. Buyer, or its designees, will
have a period of twenty-one (21) days after Seller's execution of this Agreement
(the "Due Diligence Period"), to enter the Property to make a Phase I
environmental study as long as such test does 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. Requests for entry upon the property or to contact any employees of
Seller shall be initiated only through Xxx Xxxxxxxxxx or Xxxx Xxxx and shall be
conducted in strict conformance with the restrictions in this Agreement and
specifically this Section 3 and Section 8(d). In addition, Buyer agrees to order
of its environmental report within the first three (3) days of Buyer's Due
Diligence.
If the Closing of the Property does not occur, Buyer shall restore the
Property to the same condition as prior to any entry by Buyer.
All due diligence materials previously submitted to Buyer 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. Buyer will make no contact
with any of Seller's employees 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 closing in connection with takeover and
closing arrangements. All third party reports desired by Buyer will be ordered
by Buyer at Buyer's expense, and Buyer agrees that it will supply copies to
Seller of each and every report upon receipt. If Buyer or Seller cancels this
Agreement for any reason whatsoever, Buyer agrees to return all due diligence
materials to Seller or Seller's attorney.
Buyer may decide at any time prior to the expiration of said 21-day Due
Diligence Period to cancel this Contract if the Phase 1 environmental study is
not satisfactory to Buyer by sending written notice to Seller prior to said
21-day expiration at which time all deposits shall be returned to Buyer and
neither party shall have further liability. 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.
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(b) Financing. Buyer agrees to apply for approval of the
financial creditworthiness and managerial credentials of Buyer in connection
with the assumption by Buyer of Seller's existing first Mortgage held by Key
Mortgage with the approximate current balance of $5,776,424.00 on Phases I and
II, and $1,745,560.00 on Phase III, bearing interest at 7.74% per annum and
maturing January, 2009. Buyer will submit within five (5) days of Seller's
execution of this Agreement financial information and management
profile/credentials to Seller. Buyer agrees to make a complete application for
such approval through Seller in good faith within five (5) days of execution of
this Agreement. Buyer will process said application through Seller with due
diligence and comply with all reasonable requests of said holder. Seller 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, in writing from the existing first mortgage lender, within forty-five
(45) days after execution of this Agreement, either party may terminate this
Agreement 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. Said assumption must contain a release of Seller from all future
liability as well as its affiliates in connection with any guaranties, and Buyer
agrees to provide a viable guarantor for the non-recourse carve outs in the
existing loan.
Said financing approval shall also include similar approval by
the holder of the first mortgage with respect to assumption by Buyer of the
existing first Mortgage affecting property known as The Paddock in Nashville,
Tennessee.
(c) This Agreement is contingent upon Buyer and Seller's
affiliate closing the sale and purchase of property commonly known as
Inducon-Amherst (60, 70, 80 and 00 Xxxxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxx) and
the Paddock Building (located in Nashville, Tennessee) which are the subject of
Agreements with affiliates of Seller simultaneously herewith. In the event
either party fails to close all transactions simultaneously, the other party
shall have the right to refuse to close. 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 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 Buyer at Closing, a Bargain and
Sale 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
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the Personal Property to Buyer, free and clear of all liens and encumbrances
(except the existing 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 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 immediately 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 may 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. (i.e., matters which would
render title unmarketable or which are inconsistent with the current use of the
Property). In no event shall Buyer have the right to object to any matters on
the updated survey after the expiration of thirty (30) days from the execution
of this Agreement. Buyer may also elect to accept Seller's existing survey
together with an Affidavit of No Change therefrom.
(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, and for State and local transfer taxes. Seller will also pay for all
title curatives, if applicable.
(e) Buyer will pay for any updated survey of the Property, for
the title insurance commitment and for all title insurance premiums, for the
recording of the Deed for the Property, and for all costs, fees, and expenses in
connection with the assumption of the existing first mortgage.
(f) Seller and Buyer will each pay their own attorney's fees.
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SECTION 5. PRORATIONS AND ALLOCATIONS.
(a) Collected rents, common area charges, escalations,
interest on the first mortgage, 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 all utility relationships with
respect to the Property as of the Closing Date. Buyer shall pay Seller cash for
all escrows held by the existing first mortgage holder and transferred to Buyer
at 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.
(c) Real Estate taxes and personal property taxes and special
assessments shall be prorated based on the custom in Buffalo, New York. Only the
current installment of any special assessments shall be prorated.
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 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
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(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.
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, except the existing first mortgage. In
addition, Buyer receiving assurances at Closing from the title insurance company
issuing the Title Commitment, that after Closing, 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
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 the existing first mortgage and 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 on the date
of execution hereof.
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.
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SECTION 8. SELLER'S WARRANTIES. The following representations and
warranties of Seller shall survive the Closing for a period of three (3) months.
(a) The legal description of the Property contained in the
recitals or in exhibit "A" attached 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, 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 closing. 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
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.
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(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,
reasonable wear and tear excepted.
(h) Seller agrees to continue its standard leasing practices
and advertising through the Closing Date, including its customary rent schedule
for new tenants, customary credit and application review and procedures,
customary security deposits and customary concessions if any.
(i) Seller warrants that it is a valid, subsisting Delaware
limited partnership, authorized to do business in New York and has full power
and authority to complete the transaction contemplated herein.
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 Xxxxxx Real Estate is due a commission from the proceeds
of the Closing, which Seller will pay. 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 due to Xxxxxx Real Estate (Xxxxxxx Xxxxxxxxx), per separate
agreement only with said broker.
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, 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.
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SECTION 11. LEASES/ASSIGNMENT OF INTANGIBLES.
(a) Seller agrees that after Buyer's due diligence, but 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 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 "Inducon East" and all variations
thereof; (d) the telephone number(s) for all of Seller's telephones installed at
the Property; (e) all architectural drawings, 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.
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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: Acquest Development, LLC
Olympic Towers
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxxxxx, President
Copy to: Xxxx Xxxxxx, Esq.
Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx
700 Guaranty Building
00 Xxxxxx Xxxxxx Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Seller: Realmark Property Investors
Limited Partnership-V
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
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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 New York 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.
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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 June 13, 2003
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By: Xxxxxxx X. Xxxxxxxx
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Acquest Development LLC
Xxxxxxx X. Xxxxxxxx, President
SELLER:
Executed June 13, 2003
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By: Realmark Property Investors Limited Partnership V
Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, General Partner
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.
By: __________________________________________
As Escrow Agent
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FOURTH AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT
INDUCON-EAST PHASES I, II, AND III
THIS FOURTH AMENDMENT TO REAL ESTATE PURCHASE AGREEMENT (the "Fourth
Amendment") is entered into this 30th day of December, 2003 by and between
REALMARK PROPERTY INVESTORS LIMITED PARTNERSHIP-V ("Seller") and ACQUEST
DEVELOPMENT, LLC, on behalf of an entity to be named (hereinafter "Buyer").
WHEREAS, Seller and Buyer entered into a Real Estate Purchase Agreement
for sale and purchase of Inducon-East Phases I, II, and III dated as of June 13,
2003 (the "Agreement"); and
WHEREAS, Seller and Buyer entered into a First Amendment to Real Estate
Purchase Agreement dated as of July 25, 2003, a Second Amendment to Real Estate
Purchase Agreement as of August 27, 2003, and a Third Amendment to Real Estate
Purchase Agreement as of October 19, 2003; and
WHEREAS, Seller and Buyer entered into a Letter Agreement dated as of
December 4, 2003; and
Buyer and Seller wish to further amend said Agreement in certain
respects.
NOW, THEREFORE, Seller and Buyer hereby further agree as follows:
1. The Purchase Price set forth in Section 1(A) is decreased to One
Million Four Hundred Thousand Dollars ($1,400,000) over and above the balance of
the First Mortgage to be assumed. Of that amount, One Hundred Thousand Dollars
($100,000) shall be allocated to Inducon East Phase III, and One Million Three
Hundred Thousand Dollars ($1,300,000) shall be allocated to Inducon East Phases
I and II.
2. From the cash payable at closing by Buyer to Seller, Seller agrees
to escrow $300,000, to be deposited with Xxxxxxx X. Xxxxxxx, as Escrow Agent,
for purposes of establishing a negative cash flow reserve or operating reserve,
for the next 12 months after closing. Said escrow shall be available to
reimburse the Buyer for operating deficits only over the aforesaid 12-month
period, i.e., to cover deficit cash flow after payment of normal operating
expenses and principal and interest payments. Said escrow shall not be available
to reimburse the Buyer for any capital expenditures (including tenant
improvements or commissions, or for any other reserve payments), or for income
taxes. At the end of the aforesaid period, Buyer agrees to release the balance
of the escrow to Seller with the understanding that the amount to be paid to
Seller at that time shall be not less than $150,000 and if the balance of the
escrow reserve is less than $150,000, then and in that event Buyer agrees to pay
over the difference between the then balance of the escrow account and
$150,000.00 to Seller.
3. In addition to the foregoing, Buyer agrees to pay Seller additional
consideration of not more than $300,000 at the end of the 12-month period
following closing to be calculated as herein set forth. On the one-year
anniversary of closing, the current monthly rent and common area maintenance
(CAM) charges payable by all tenants of the Property shall be calculated and
annualized. Normal operating expenses (not including income taxes, capitalized
items, tenant improvements, commissions, depreciation or debt service) shall
then be calculated for the 12-month period from and after closing, which shall
be subtracted from the aforesaid annualized income. The resulting difference
shall be defined as the net operating income of the Property and the amount of
net operating income in excess of $725,000 shall be capitalized at Ten Percent
(10%). The first $300,000 of such capitalized amount shall be paid within 30
days of expiration of said 12-month period after closing to Seller by Buyer and
any balance shall be retained by Buyer.
4. Notwithstanding the foregoing paragraphs 2 and 3 above, in no event
shall Buyer be obligated to pay Seller more than $300,000.00 in the aggregate
under said paragraphs 2 and 3.
5. With respect to paragraphs 2, 3 and 4 above, Buyer agrees to make
its books and records available at all reasonable times to Seller for review
and/or audit (at Seller's expense) for purposes of calculating amounts
referenced in said paragraphs.
6. The Closing Date is agreed to be December 30, 2003 with adjustments
as of December 31, 2003. At that time, the Deeds, Assignments of Lease, and all
other corollary closing documents shall be deposited with Ticor Title Insurance
Company as Escrow Agent after being executed by Seller and Buyer. Thereafter,
Buyer shall complete the arrangements for execution and release of all
assumption documents from the holder of the first mortgage and on or before
January 20, 2004, with said date being a time of the essence date, shall deliver
said executed assumption documents and the remaining amounts due as set forth on
the Closing Statement as well as all expenses in connection therewith to the
title company, whereupon the Closing Documents shall be released for recording
and/or delivery to the appropriate parties, and the closing shall be completed.
At the time of closing, Buyer agrees that the total Xxxxxxx Money Deposit of
$100,000 on Inducon East I, II, and III, and the Xxxxxxx Money Deposit of
$50,000 on The Paddock shall be transferred and shall be added to the Xxxxxxx
Money Deposit on the Inducon-Amherst Agreement pending between Buyer and an
affiliate of Seller, to be applied to the Purchase Price under that Agreement.
7. It is understood that the Seller shall continue to operate the
Property through the completion of the escrow requirements and funding aforesaid
and shall account for all income and expenses for the Property to the Buyer as
of the completion of the escrow requirements. Upon completion of escrow
requirements and funding, Buyer shall take over management of the Property.
8. Buyer agrees to reimburse Seller for the principal portion of the
mortgage payments payable on the existing first mortgages for the month of
January if said payments are made by Seller, which amounts shall be payable in
addition to the amount already agreed to be paid relative to the December
mortgage payments previously agreed to. In addition, Buyer will reimburse Seller
at funding for all escrow reserves paid in January to the holder of the first
mortgage.
9. In all other respects, the Agreement and all amendments thereto are
otherwise confirmed and ratified.
REALMARK PROPERTY INVESTORS
LIMITED PARTNERSHIP-V
By: Xxxxxx X . Xxxxxx, General Partner
ACQUEST DEVELOPMENT, LLC,
on behalf of an entity to be named
By: Xxxxxxx X. Xxxxxxxx, President
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