10.1.4 executed FIRPTA document(s) (defined in Par. 26);
10.1.5 keys to the Unit, building entrances, garage, mailbox and any
locks in the Unit;
10.1.6 if requested, an assignment to Purchaser of Seller’s interest in
the Property;
10.1.7 Net Insurance Proceeds and/or assignment of any uncollected
Net Insurance Proceeds, if applicable; and
10.1.8 instruments or other documents required under Par. 4.1.2, if any.
10.2 At Closing, Purchaser shall:
10.2.1 pay the Balance in accordance with Par. 2.2.2;
10.2.2 execute and deliver to Seller and the Corporation an agreement
assuming the Lease, in the form required by the Corporation; and
10.2.3 if requested by the Corporation, execute and deliver counterparts
of a new lease substantially the same as the Lease, for the balance of the
Lease term, in which case the Lease shall be cancelled and surrendered to the
Corporation together with Seller’s assignment thereof to Purchaser.
10.3 At Closing, the Parties shall provide the information necessary for
Internal Revenue Service (“IRS”) Form 1099-S or other similar form
required.
10.4 At Closing, Seller shall provide, and the Parties shall execute, all
documents necessary to comply with any applicable transfer and/or gains tax
filings.
11. Closing Fees, Taxes and Apportionments
11.1 At Closing, Seller shall pay, if applicable:
11.1.1 the processing fee(s) of the Corporation, its attorneys, and/or
agents, except as set forth in Par. 11.2.3;
11.1.2 the cost of stock transfer stamps; and
11.1.3 the transfer tax and transfer gains tax, except a transfer tax which
by its terms imposes primary liability on the purchaser.
11.2 At Closing, Purchaser shall pay:
11.2.1 the sales taxes, if any, on this sale, other than the transfer stamps
as provided for in Par. 11.1.2;
11.2.2 the cost of any title search;
11.2.3 any fee to the Corporation or its agents and/or attorneys relating
to Purchaser’s financing; and
11.2.4 a transfer tax which by law is primarily imposed on the
purchaser.
11.3 At Closing, the Flip Tax, if any, shall be paid by the Party specified in
Par. 1.15.
11.4 At Closing, the Parties shall apportion as of 11:59 P.M. of the day
preceding the Closing, the Maintenance and any other periodic charges due
the Corporation (other than Assessments).
11.5 Assessments, whether payable in a lump sum or installments, shall not
be apportioned, but shall be paid by the Party who is the owner of the Shares
on the date specified by the Corporation for payment. Purchaser shall pay
any installments payable after Closing provided Seller had the right to and
elected by pay the Assessment in installments.
11.6 Each party covenants to the other that it will timely pay any taxes for
which it is primarily liable pursuant to law. This Par. 11.6 shall survive
Closing.
12. Broker
12.1 Each Party represents to the other that such Party has not dealt with any
other person acting as a broker, whether licensed or unlicensed, in
connection with this transaction other than the Broker named in Par. 1.10.
12.2 Seller shall pay the Broker’s commission pursuant to a separate
agreement. The Broker shall not be deemed to be a third-party beneficiary of
this provision.
12.3 This Par. 12 shall survive the Closing.
13. Defaults, Remedies and Indemnities
13.1 In the event of a default or misrepresentation by Purchaser, Seller’s sole
remedy shall be to terminate this Contract and retain the Contract Deposit as
liquidated damages, except there shall be no limitation on Seller’s remedies
for a breach of Par. 12.1. In case of Purchaser’s misrepresentation or default,
Seller’s damages would be impossible to ascertain and the Contract Deposit
constitutes a fair and reasonable amount of compensation.
13.2 In the event of a default or misrepresentation by Seller, Purchaser shall
have such remedies as Purchaser is entitled to at law or in equity, including
specific performance, because the Unit and possession thereof cannot be
duplicated.
13.3 Each Party indemnifies and holds harmless the other against and from
any claim, judgment, loss, liability, cost or expense resulting from the
indemnitor’s breach of any of the representations or covenants stated to
survive Closing. This indemnity includes, without limitation, reasonable
attorneys’ fees and disbursements, court costs and litigation expenses. This
Par. 13.3 shall survive the Closing.
13.4 Purchaser indemnifies and holds harmless Seller against and from any
claim, judgment, loss, cost or expense resulting from the Lease obligations
assumed by Purchaser. This indemnity includes, without limitation,
reasonable attorneys’ fees and disbursements, court costs and litigation
expenses. This indemnity does not include or excuse a breach of any
representation or covenant by Seller in Par 4.1. This Par. 13.4 shall survive
the Closing.
13.5 In the event any instrument for the payment of the Contract
Deposit fails of collection, Seller shall have the right to sue on the
uncollected instrument. In addition, such failure of collection shall
be a default under this Contract, provided Seller gives Purchaser
Notice of such failure of collection and, within 3 business days after Notice
is given, Escrowee does not receive from Purchaser an unendorsed certified
check, bank check or immediately available funds in the amount of the
uncollected funds. Failure to cure such default shall entitle Seller to the
remedy in Par. 13.1 and to retain all sums as may be collected and/or
recovered.
14. Entire Agreement; Modification
14.1 All prior oral or written representations, understandings and agreements
had between the Parties with respect to the subject matter of this Contract,
and with the Escrowee as to Par. 28, are merged in this Contract, which alone
fully and completely expresses their agreement.
14.2 A provision of this Contract may be changed or waived only in writing
signed by the Party (or Escrowee) to be charged.
14.3 The Attorneys may extend in writing any of the time limitations stated
in this Contract.
15. No Assignment by Purchaser
15.1 Purchaser may not assign this Contract or any of Purchaser’s rights
hereunder and any purported assignment shall be null and void.
15.2 This Contract shall bind and inure to the benefit of the Parties hereto
and their respective heirs, personal and legal representatives and successors
in interest.
16. Cancellation for Other than Default or Misrepresentation
If Seller shall be unable to transfer the Lease and the Shares in
accordance with this Contract for any reason not due to Seller’s willful acts
or omissions, then the sole obligation of Seller shall be to refund to Purchaser
the Contract Deposit and reimburse Purchaser for the actual costs incurred
for Purchaser’s title or abstract search, except such reimbursement shall not
be required if a cancellation is pursuant to Par. 6 or 19. Upon making such
refund, this Contract shall be cancelled and neither Party shall have any
further claim against the other hereunder.
17. Notices.
17.1 Any notice or demand (“Notice”) shall be in writing and either
delivered by hand or overnight delivery or sent by certified or registered mail
to the Party and simultaneously, in like manner, to such Party’s Attorney, if
any, and to Escrowee at the addresses set forth in Par. 1, or to such other
address as shall hereafter be designated by Notice given pursuant to this Par.
17.
17.2 Each Notice shall be deemed given on the same day if delivered by
hand or on the following business day if sent by overnight delivery, or the
second business day following the date of mailing.
17.3 The Attorneys are authorized to give any Notice specified in this
Contract on behalf of their respective clients.
17.4 Failure to accept a Notice does not invalidate the Notice.
18. Margin Headings
The margin headings do not constitute part of the text of this Contract.
19. Financing Contingency (delete if inapplicable)
19.1 Purchaser may cancel this Contract and recover the Contract Deposit by
following the procedure in Par. 19.4 if after complying with Purchaser’s
“Financing Obligations” in Par. 19.2 below and Purchaser’s other
obligations under this Contract:
19.1.1 Purchaser fails through no fault of Purchaser to obtain from an
“Institutional Lender” (defined in Par. 19.5.1) a “Loan Commitment Letter”
(defined in Par. 19.5.2) for financing on the Loan Terms and within the time
period stated in Par. 1.16 (the “Loan”); or
19.1.2 the Institutional Lender and the Corporation cannot agree on the
terms of an agreement for the protection of the Institutional Lender
(commonly called a recognition agreement), if required by the Institutional
Lender.
19.2 Purchaser’s right to cancel under Par. 19.1 and recover the
Contract Deposit is conditioned upon Purchaser’s diligent compliance with
all of the following “Financing Obligations”:
19.2.1 Purchaser must apply in good faith for the Loan from an
Institutional Lender within 7 business days after a fully executed counterpart
of this Contract is given to Purchaser;
19.2.2 the Loan application must contain truthful, accurate and
complete information as required by the Institutional Lender; and
19.2.3 Purchaser must comply with all requirements of the Institutional
Lender to obtain the Loan Commitment Letter and to close the Loan.
19.3 Purchaser may also cancel this Contract and recover the Contract
Deposit in accordance with the procedure in Par. 19.4 if:
19.3.1 the Closing is adjourned by Seller or the Corporation for more
than 30 business days from the date set for Closing in Par. 1.11; and
19.3.2 the Loan Commitment Letter expires on a date more than 30
business days after the date set for Closing in Par. 1.11 and before the new
date set for closing pursuant to Par. 19.3.1; and
19.3.3 Purchaser is unable in good faith to obtain from the Institutional
Lender an extension or a new Loan Commitment Letter for the Amount
Financed stated in Par. 1.16 or the same principal amount stated in the
expired Loan Commitment Letter, whichever is lower, without paying any
additional fees to the Institutional Lender (unless Seller, within 5 business
days after receipt of Notice of such fees, gives Notice that Seller will pay
such fees and pays them when due). All other substantive Loan terms may
be materially no less favorable than in the expired Loan Commitment Letter.
19.4 In order to cancel pursuant to Par. 19.1 or 19.3, Purchaser shall
give notice of cancellation to Seller within 7 business days after the
right to cancel arises. Purchaser’s failure to timely give such Notice
of cancellation will be deemed a conclusive waiver of such right to
cancel. In case of cancellation pursuant to Par. 19.1, a copy of any