REAL ESTATE PURCHASE AGREEMENT
FOX ▇▇▇▇ APARTMENTS
This purchase agreement ("Agreement" or "Contract"), made and entered into
by and between Realmark Property Investors Limited Partnership-II, a Delaware
limited partnership ("Seller") and Partnership Equities, Inc. ("Buyer").
RECITALS:
A. Buyer desires to purchase from Seller, and Seller wishes 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,
consisting of an apartment complex (the "Real Property"), 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 also excluding software not able to be
transferred vis a vis existing licensing agreements, if any) owned by Seller,
utilized in the operation or management of the apartment complex, and located at
said apartment complex as described on EXHIBIT B (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 more detailed list of the Personal Property will be prepared by
Seller and submitted during the first ten (10) days of the due diligence period
set forth in Section 3 below and will thereafter be attached to this Agreement
as an amendment to 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 Real Property will
be $7,400,000.00 ("Purchase Price") paid in the following manner:
Initial ▇▇▇▇▇▇▇ Money Deposit
at signing of Purchase Agreement $ 10,000.00
Additional ▇▇▇▇▇▇▇ Money Deposit
after Due Diligence Period (as
defined herein). 90,000.00
Cash at closing (subject to
credit for ▇▇▇▇▇▇▇ Money,
prorations and allocations per
Section 5) $ 7,300,000.00
--------------------
Total $ 7,400,000.00
and payable by Buyer on closing of title and delivery of the Deed ("Closing") in
immediately available good, federal funds. The Additional ▇▇▇▇▇▇▇ Money Deposit
shall be paid to the Escrow Agent within five (5) days after the expiration of
the Due Diligence Period.
(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 Initial ▇▇▇▇▇▇▇ Money in the amount stated in Section 1 (a)
above (the "Initial ▇▇▇▇▇▇▇ Money") will be deposited with Andrews, Sanchez,
Amigone, Mattrey & ▇▇▇▇▇▇▇▇, LLP in Buffalo, New York, as Escrow Agent (the
"Escrow Agent"), within four (4) days from the date of Seller's execution (as
communicated to Buyer by written facsimile and orally by telephone on such date
of execution) of this Agreement. Within five (5) days after the end of the Due
Diligence Period (as hereinafter defined) Buyer will deposit an additional sum
of $90,000.00 as Additional ▇▇▇▇▇▇▇ Money (the "Additional ▇▇▇▇▇▇▇ Money") with
the Escrow Agent. The Initial ▇▇▇▇▇▇▇ Money and the Additional ▇▇▇▇▇▇▇ Money are
hereinafter collectively referred to as the "▇▇▇▇▇▇▇ Money". Absent any contrary
provision of this Agreement, the total ▇▇▇▇▇▇▇ Money in the amount of
$100,000.00 will remain on deposit with the Escrow Agent until the Closing of
the Property. If either of the ▇▇▇▇▇▇▇ Money deposits are not made by the dates
as herein above set forth, Seller may terminate this Agreement. Interest on the
▇▇▇▇▇▇▇ Money shall follow the principal sum on any payment or refund. Interest
payable to Buyer shall be credited to Tax ID #▇▇-▇▇▇▇▇▇▇. 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 ▇▇▇▇▇▇▇ 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 270 days after execution
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of this Agreement by both parties, unless extended as otherwise set forth in
this Agreement. As used herein the terms "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 Real Property.
(b) Buyer and Seller agree that they will use their best efforts to
complete the Closing within two hundred seventy (270) days from the execution of
this Agreement. Buyer agrees that it will use best efforts and good faith in
applying for a Bond Cap allocation and/or for financing for the Real Property
and will obtain same as soon as reasonably possible and will close on said Real
Property promptly thereafter. Notwithstanding the foregoing, and upon
satisfaction of all conditions precedent, Buyer shall complete the Closing by
April 15, 1997.
(c) 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, five 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 sixty
(60) days after August 20, 1996 (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.
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 will inspect the Real
Property, and if any, the plans and specifications for design, quality,
structural and mechanical integrity and maintenance during the Due Diligence
Period. At the signing of this Agreement or within ten (10) days thereafter,
Seller shall provide or make available at designated locations, those
operational and title information items which relate to the Property, reasonably
requested by Buyer, including, but not limited to:
o Inventory of Personal Property
o Current Rent Roll - December 1995 or April 1996
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o 1994 & 1995 year-end Operating Statements
o Operating Statement for the year 1996 to date (as of 4/30/96)
o December 1995 Operating Statement and 1996 Operating Budget
(It is specifically understood that Operating Budgets are
projections of Seller only and Seller makes no warranty or
representation with respect to any parties' achievement of any
such items in said Budget.)
o Detailed breakdown of the Property's payroll account including
a list of on-site personnel, salary and benefits
o Copy of current ad valorem tax bills, copy of each separate
utility ▇▇▇▇ for the Property for the past 3 months and a
listing by month of utility charges for 1995
o As-built survey, construction drawings, soil report,
compaction tests, and copies of all Certificates of Occupancy,
if any of the foregoing are in Seller's possession
o Copies of all third-party contracts (e.g., termite, landscape,
pool maintenance, etc.)
o Copies of any environmental reports, engineering reports,
feasibility studies, or appraisals in Seller's possession
(obtained within the last 36 months, it being understood that
Seller makes no warranty or representation with respect to the
information set forth in any of said studies)
o Copies of the latest insurance policy covering the Project,
with current coverage and deductibles along with a paid
invoice for said policy(s) (the same may be within a master
policy)
o Name, firm name, and telephone number for the lawyer most
recently involved with the Project. (It is agreed that at this
time the foregoing shall be identified as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., of Andrews, Sanchez, Amigone, Mattrey & ▇▇▇▇▇▇▇▇, LLP,
(▇▇▇) ▇▇▇-▇▇▇▇.)
o Make available to Buyer all income information in Seller's
possession on all tenants currently leasing units in the
Property.
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o Originals or copies of all tenant leases, rent rolls for the
Property, including security deposits held by Seller in
connection with each apartment unit, credit reports and other
information concerning the leases which are currently in
Seller's file, service agreements, party-wall agreements, and,
if in Seller's possession engineering or architectural reports
for the Properties.
o Proof of zoning classification, if any, in Seller's possession
o A list of all equipment leases and/or any financing documents
for personal property, equipment, etc., affecting the
apartment complex
o Any other items which a prudent buyer reasonably requests and
needs in order to conduct a satisfactory due diligence review.
All of the foregoing will either be at the Property location or at Seller's
offices in Amherst, New York, or at Seller's option, will be forwarded to Buyer.
Any documents not provided by Seller to Buyer within the above ten (10) day
period will be made available by Seller, as soon as such documents are
available. In the event of any such failure to deliver any documents, except
those which are not in Seller's possession and which are so qualified
hereinabove as excusable items, the Due Diligence Period will be extended to a
date no less than five (5) days after delivery of the items not delivered within
the Due Diligence Period.
All Due Diligence materials must be maintained by Buyer 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 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 of each and every report it receives immediately upon their completion
and availability to Buyer.
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(ii) During the Due Diligence Period, Buyer will conduct a review of
the economics and feasibility of acquiring and operating the Property as
required by its funding source, including inspection of all zoning and other
government permits and regulations and other matters and documents relating to
the operation of the Property, and as detailed in Section 3(a).
(iii) After Seller provides all required documents to the Buyer,
Buyer agrees to accept or reject 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 Contract is contingent upon Buyer obtaining a "firm" commitment
(per the practice of HUD for 221D4 mortgages) for financing the purchase of Real
Property in accordance with the Contract upon terms and conditions satisfactory
to Buyer. Buyer agrees to apply for said commitment promptly upon the
commencement of its Due Diligence period set forth in (a) above, and shall have
a period of 150 days to obtain said commitment. Should Buyer be unable to obtain
said commitment within said 150-day period, either party may terminate this
Contract by written notice to the other in which case the ▇▇▇▇▇▇▇ Money shall be
returned to Buyer and neither party shall have any further liability, except the
obligation to restore the premises after due diligence. Buyer shall have the
right to extend the mortgage contingency period for up to 30 days on prior
written notice to Seller if the mortgage application is through HUD.
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"), conveying
good and marketable fee simple title to the 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. Further, the title insurance commitment for the Property must
contain provision for the endorsements that are reasonably required by Buyer's
funding source, which endorsements shall be ordered by Buyer at Buyer's expense.
In addition, Seller shall convey title to the Personal Property to Buyer, free
and clear of all liens and encumbrances (except those disclosed during due
diligence; e.g., equipment leases or personal property financing documents), by
the execution and delivery at Closing of a ▇▇▇▇ 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 existing title insurance
policy to Buyer. Buyer shall then obtain an ALTA Form B Title Insurance
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Commitment (the "Title Commitment"), within thirty (30) 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 marketable 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 each Property), and containing no other
exceptions not specifically approved by Buyer. 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
Commitments.
(c) If Buyer's examination of the Title Commitment reveals that the
Title Commitment for the Property contains objectionable exceptions or that the
title to the 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, or if the title company refuses
to issue endorsements as required by Buyer's lender, 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 Property.
(e) Buyer will pay for any survey of the Property, the recording of
the Deed for the Property, state tax and register's fees on the Deed, the cost
of obtaining a title commitment, and the premium due for the title insurance
policy to be issued for the Property, and all endorsements.
(f) Seller and Buyer will each pay their own attorney's fees.
SECTION 5. PRORATIONS AND ALLOCATIONS. (a) Rents, taxes, service con-
tracts, 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 to the date of the Closing based on a 365-day year.
(b) Security deposits held by Owner 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.
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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 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 Seller within seven (7) days after Buyer
has received the notice referred to above or at the closing, whichever is
earlier. If Buyer does not elect to terminate its obligations as aforesaid, the
closing shall take place as provided herein without an abatement of the purchase
price (except that Buyer shall be allowed a credit for any deductible under
Seller's insurance) and there shall be assigned to the Buyer at closing, all
interest of the Seller in and to any insurance proceeds or condemnation awards
which may be payable to Seller on account of such occurrence. Notwithstanding
the foregoing, should Buyer elect to terminate, Seller may notify Buyer within
15 days that Seller intends to restore the Premises fully and in that event,
Buyer's termination notice shall be null and void and Seller shall proceed as
outlined above at closing.
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 allocable 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.
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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 each 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, 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, except as set forth in Section 4
above, and all other exceptions objected to by Buyer deleted from such policy,
insuring fee simple marketable title to the Property or in accordance with
Section 4 above, in the amount of the Purchase Price, in Buyer's name, free and
clear of all liens and encumbrances not otherwise specifically agreed to by
Buyer prior to Closing.
(c) PERSONAL PROPERTY. Seller conveying title to the Personal
Property to Buyer at Closing free and clear of all liens and encumbrances
(except for equipment leases and personal property financing disclosed during
due diligence) by a ▇▇▇▇ of Sale without warranties except as to title in form
and substance reasonably satisfactory to Buyer.
(d) LAWS AND REGULATIONS. Prior to Closing Seller not having
received written notice of non-compliance under any and all Federal, State,
County and Municipal laws, ordinances, requirements and regulations, including
but not limited to any and all environmental laws and regulations, affecting the
Property. Notwithstanding the foregoing, however, in the event Seller does
receive a written notice of violation of any of the foregoing, then and in that
event, Seller shall have the option of curing the matter which is the subject of
such notice before closing and/or making reasonable arrangements to complete the
cure of such violation after closing, provided an escrow is established for the
cost of said cure; and provided Seller either cures the subject of such notice
or makes adequate provisions to cure same and escrow the funds as set forth
hereinabove to do so, then and in that event, Buyer shall have no right to
terminate this Contract.
(e) SELLER COOPERATION. Seller agrees to cooperate with and assist
Buyer and to execute any and all applications, petitions and attend and
participate in any necessary hearings, and undertake all other reasonable acts
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to obtain any necessary permits for which Buyer may make application prior to
closing, provided that Buyer shall bear all expenses incidental thereto,
including all of Seller's out-of-pocket expenses.
(f) COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. Seller will be
in compliance with all other representations and warranties made herein at
Closing to the reasonable satisfaction of Buyer.
(g) NOTICE OF CLOSING. If all the conditions specified herein have
not been met within 270 days after execution of this Contract, Buyer shall have
the option to terminate this Agreement, by giving written notice to Seller
specifying the condition not met and provided that Seller does not cure or
remove said condition within 60 days after such notice, or such extended time as
the parties may agree, and in that event the ▇▇▇▇▇▇▇ Money shall be returned to
Buyer. However, in the event that all conditions specified herein have been met
by the Closing date, Buyer shall close the Purchase within the time period
specified, subject to non-performance by Seller under the terms hereof.
SECTION 8. SELLER'S WARRANTIES. The following warranties of Seller shall
survive the Closing for a period of sixty (60) days.
(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.
(b) To Seller's best knowledge and belief (Seller meaning ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ or an officer of the general partner of Seller) Seller has not received
written notification that the Property is not in compliance with all 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.
(d) 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 ▇▇▇▇ of Sale, in form and substance reasonably
satisfactory to Buyer, free and clear of all liens and encumbrances.
(e) 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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(f) 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 program or
agreement, 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.
(g) 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.
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 terminate this
Agreement whereupon the ▇▇▇▇▇▇▇ Money shall be returned to Buyer on demand or
Buyer may bring an action for specific performance, and if Buyer prevails, all
costs and expenses of any such action shall be paid by Seller as a reduction of
the Purchase Price. The foregoing shall not prevent Buyer from bringing 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 ▇▇▇▇▇▇▇ Money as set forth hereinabove.
(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 ▇▇▇▇▇▇▇ 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 and
hereby agrees to indemnify and hold harmless Buyer from the claims of any agent,
consultant or broker for the payment of a commission or commissions.
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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.
(b) Seller shall assign the existing tenant leases to Buyer at
Closing along with all service contracts and other agreements affecting the
Property, provided that 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
by Seller, the assignee shall assume the obligations of Buyer and provided said
consent is obtained, Buyer shall thereafter be relieved of liability for the
performance of this Agreement. Seller's consent pursuant to this section shall
be in its sole discretion and shall include approval of all proposed assignment
documents.
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. INDEMNIFICATION.
(a) SELLERS INDEMNITY. Seller shall indemnify, defend and hold Buyer
harmless from any claims, demand, loss, liability, damage, or expense (including
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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, or by national
overnight express carrier. Notices shall be deemed to have been given when sent
as follows:
Buyer: Partnership Equities, Inc.
c/o The ▇▇▇▇▇▇▇ Companies
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Seller: c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇ and Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Andrews, Sanchez, Amigone,
Mattrey & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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
▇▇▇▇▇▇▇ 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
13
payment of the ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Money.
The Escrow Agent shall be liable as a depository only and its duties
hereunder are limited to the safekeeping of the ▇▇▇▇▇▇▇ 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.
SECTION 21. ASSIGNMENT OF BOND CAP ALLOCATION. If Buyer obtains a Bond Cap
allocation or a financing commitment or other related approvals with respect to
the Property, and should Buyer otherwise cancel this Contract as to such
Property or does not close for any reason whatsoever, then and in that event, to
the extent allowable by law, Buyer shall assign the Bond Cap allocation and all
related approvals or commitments with respect to such Property to Seller or its
designee wherever possible and/or if allowed by any lender or other authority
and Buyer will cooperate with Seller in all respects with respect to any
requirements to complete such assignment.
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 JULY 16, 1996
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PARTNERSHIP EQUITIES, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------------------
CHAIRMAN
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SELLER:
Executed JULY 16, 1996
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BY: REALMARK PROPERTY INVESTORS LIMITED PARTNERSHIP-II
BY: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
G.P.
RECEIPT OF ESCROW AGENT
The undersigned hereby acknowledges receipt of the ▇▇▇▇▇▇▇ Money provided for
herein, and that the same is being held as Escrow Agent pursuant to the terms of
the above Purchase Agreement.
ANDREWS, SANCHEZ, AMIGONE, MATTREY & ▇▇▇▇▇▇▇▇, LLP
as Escrow Agent
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------------
Member