(Community Acquisition Joint Venture
National Agreement of Sale)
AGREEMENT OF SALE
THIS AGREEMENT OF SALE made as of this ____ day of March, 1998, by and
between COMMUNITY ACQUISITION JOINT VENTURE, a Delaware partnership ("BUYER")
and ____________________________ ("SELLER").
WHEREAS, SELLER is the fee simple owner of certain premises commonly
known as SERENDIPITY MOBILE HOME PARK located in the City of Fort Xxxxx, Xxx
County, Florida, more particularly described in Exhibit "A" attached hereto and
made a part hereof (together with all rights and easements appurtenant thereto
and all permanent improvements, fixtures and utility systems thereon, being
hereinafter collectively referred to as the "Real Property"); and
WHEREAS, SELLER desires to sell and BUYER desires to purchase the Real
Property and all personal property and equipment described in the Schedule of
Personal Property attached hereto as Exhibit "B" and made a part hereof (the
"Personal Property"), under the terms and conditions set forth herein (the
aforesaid Real Property and Personal Property being hereinafter collectively
referred to as the "Property").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, together with other valuable considerations, the receipt and sufficiency
of which is hereby acknowledged, SELLER agrees to sell and BUYER agrees to buy
the Property on and under the terms and conditions herein set forth.
1. SALE AND PURCHASE OF PROPERTY. SELLER agrees to sell and convey to
BUYER and BUYER agrees to purchase:
(a) All of SELLER'S right, title and interest in and to the
Real Property, together with all right, title and interest of SELLER in and to
any land lying in the beds of any streets, avenues, alleys or passages, open or
proposed, bounding or abutting the Real Property, and drainage rights
appurtenant to the Real Property, together with all right, title and interest,
if any, of SELLER, in and to any easements, rights of way or passageways
appurtenant to or benefiting the Real Property and free of all liens and
encumbrances except the Permitted Exceptions, as that term is defined in
Paragraph 4 hereof;
(b) All articles of personal property of whatsoever nature or
sort, if any, which are owned by SELLER and which, as of the date of this
Agreement of Sale, are attached or appurtenant to or used exclusively in
connection with or located in or upon the Real Property, and any additions
thereto or replacements thereof which may be made between the date of this
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Agreement of Sale and the date of Closing hereunder (all of the foregoing being
hereinafter collectively referred to as the "Personal Property"), which Personal
Property shall be conveyed by SELLER to BUYER at Closing by a quit-claim xxxx of
sale; and
SELLER'S interest in the Real Property and the Personal Property are
hereinafter sometimes referred to collectively as the "Property".
2. CONSIDERATION. The total consideration to be paid by BUYER for the
Property shall be in the sum of EIGHT MILLION FOUR HUNDRED SIXTY THOUSAND
DOLLARS ($8,460,000.00) (the "Purchase Price").
3. PAYMENT OF CONSIDERATION. The Purchase Price shall be paid as
follows:
(a) Within five (5) calendar days of the Effective Date of
this Agreement of Sale, as that term is defined in paragraph 34 below, BUYER
shall deliver to Chicago Title Insurance Company, c/o Xxxxx Xxxx, at the
following address: 0000 Xxxx Xx., Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (the
"Escrow Agent"), the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) which
shall represent the xxxxxxx money deposit for the Property (the "Deposit"). The
Deposit shall be deposited by Escrow Agent in its Trust Account until the
expiration of the BUYER'S Inspection Period (as hereinafter defined).
(b) The Escrow Agent shall, upon receipt from BUYER of a
complete and fully executed W-9 Reporting Form, deposit the Deposit into an
interest bearing money market account, which interest shall accrue to BUYER'S
benefit unless BUYER defaults hereunder.
(c) BUYER shall pay the balance of the Purchase Price, after
application of the Deposit to the Purchase Price, to SELLER at Closing by wire
transfer of immediately available federal funds at the office of the Escrow
Agent.
4. TITLE INSURANCE.
A. Within ten (10) days of the Effective Date of this
Agreement by SELLER, SELLER shall deliver to BUYER a copy of the owner's current
title insurance policy, if any, together with copies of all instruments recorded
in the public records or otherwise encumbering the Property, subsequent to the
effective date of said Policy.
B. Within twenty (20) days of the date of Statutory Compliance
provided in paragraph 8 (should BUYER elect to purchase the Property) Williams,
Parker, Xxxxxxxx, Xxxxx and Xxxxxx ("Title Agent") shall, at SELLER'S expense,
as agent for Chicago Title Insurance Company, deliver to BUYER and BUYER'S
Attorney for approval, as hereinafter provided, a preliminary owner's title
binder for a title insurance policy, together with copies of all exception
documents referred to therein. The binder and policy to be issued pursuant
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thereto shall be paid for by SELLER, shall be issued at the minimum promulgated
rate, and shall be in an amount equal to the amount of the purchase price. The
policy and binder shall be in a current ALTA standard form "B", except that
there shall be no exceptions unless agreed to by BUYER (the "Permitted
Exceptions"). The policy shall insure marketable title.
C. BUYER shall have until the end of Buyer's Inspection
Period, to give written notice to SELLER or SELLER'S attorney of any objections
by BUYER to the state of title (including any matters shown on the survey which
are unacceptable to BUYER). Failure of BUYER to deliver a written notice of
disapproval of the state of title to SELLER or SELLER'S attorney within said
period shall be conclusive evidence that BUYER has approved said preliminary
title report and all exceptions to title disclosed in said report or disclosed
on the survey.
D. After due notice, SELLER shall have a reasonable time, not
to exceed thirty (30) days, (and if necessary, the Closing shall be delayed for
that period) to: (a) cure any title defects, or (b) terminate this Agreement,
whereupon this Agreement shall terminate and all parties shall be released from
any further obligations hereunder, except that BUYER shall be entitled to an
immediate refund of all monies paid in respect of the purchase price plus
accrued interest, if any. Provided, however, BUYER may elect to waive such
defects and to proceed under this Agreement and accept title to the Real
Property subject to such defects, in which case the Closing shall take place on
the later of the date set for Closing as hereinafter provided or on a date
mutually agreed upon by SELLER and BUYER which shall be within ten (10) days
from the date of such election by BUYER (the date finally set by the parties
hereto for the Closing shall be hereinafter referred to as the "Closing Date").
E. Title Agent or its agent, shall be in attendance at the
Closing and be in a position to issue the title policy upon recording the
appropriate documents and insure that SELLER has complied with all requirements
set forth under the applicable state statutes to extinguish any right of
purchase or rescission in favor of any tenants or homeowners association.
5. SURVEY. Within ten (10) days of the effective date of this Agreement
by SELLER, SELLER shall deliver to BUYER the most current survey of the Real
Property in SELLER'S possession (if any). BUYER may, at its expense, within
thirty (30) days of the date of the Statutory Compliance, obtain a current "as
built" survey of the Real Property. The survey must be acceptable and certified
to BUYER, BUYER'S mortgage lender (if any), and the title insurer insuring the
Real Property so that the "survey" and "claims of easements" exceptions can be
removed from the title policy, and must be prepared in accordance with the
minimum requirements adopted by the agency or authority regulation the
preparation of surveys in the State in which the Real Property is located. The
survey shall locate all easements, streets, common area improvements, building
setback lines, and other manmade objects, excluding manufactured homes and shall
be super- imposed over an aerial photograph so as to locate all manufactured
homes and vacant spaces, if any. If the survey discloses an encroachment or
setback violation, BUYER shall notify SELLER thereof in writing within said
thirty (30) day period, and this shall be deemed a defect in title and paragraph
4 above, shall apply. The survey shall be dated and signed by a registered
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and/or licensed land surveyor in the state in which the Real Property is
located. The surveyor's seal shall be affixed to the survey. The surveyor's
registration and/or license number shall be indicated thereon, and the legal
description of the Real Property shall be set forth on the survey. Any other
survey requirements in the Title Commitment shall also be complied with,
including a surveyor's certificate acceptable to the Title Insurer and counsel
for BUYER.
6. REPRESENTATIONS AND WARRANTIES.
A. To induce BUYER to enter into this Agreement, SELLER makes
the following representations and warranties, all of which shall be true and
correct continuously throughout the term of this Agreement, and which shall
survive the closing of title for a period of six (6) months from the Closing
Date (hereinafter defined):
(a) SELLER is the owner of the Property and has the
authority to execute and deliver this Agreement.
(b) To SELLER'S knowledge, there are no special or
other assessments levied against or relating to the Property and SELLER does not
know of any proposed assessments.
(c) No goods or services have been contracted for by
SELLER or furnished to the Real Property on SELLER'S behalf which might give
rise to any mechanic's liens upon or affecting all or any part of the Real
Property.
(d) There are no leases which affect the Real
Property except as set forth in the Rent Roll attached hereto as Exhibit "C" and
made a part hereof and the information contained on the Rent Roll is true and
correct in all material respects; no rental agents, brokers or finders have any
rights with regard to such leases and there are no commissions payable in
connection therewith; no tenant has an option to purchase any part of the
Property except collectively through their Association pursuant to Section
723.071, Florida Statutes; and SELLER is the landlord under each such lease and
has the right to assign same to BUYER.
(e) SELLER has received no notice of any violations
of any law, ordinance, rule, order, regulation, code or requirement, including
any requirement contained in any hazard insurance policy covering the Property
or any part thereof or of any board of fire underwriters or other body
exercising similar functions, which are applicable to the Property or to any
part thereof or which are applicable to the use or manner of use, occupancy,
possession or operation of the Property, which have not been cured. SELLER
represents that the litigation with regard to the past delivery of notices of
increase in lot rental amount and other issues styled Serendipity Mobile
Homeowners, Inc. vs. Serendipity Properties, Inc., case number 94-9622-CA-JLR,
Circuit Court for Xxx County, Florida, has been settled and dismissed with
prejudice by the plaintiff thereof.
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(f) To SELLER'S knowledge, SELLER has obtained and
kept in good standing all governmental permits, licenses, and approvals
necessary for the operation of the Property as a manufactured housing (mobile
home) community, including, as applicable, all County Health Permits or other
applicable permits, State Department of Environmental Protection permits and
State HRS permits, and SELLER has received no written notice from any such
governmental permitting or licensing authority that there are material
violations currently existing thereunder.
(g) A prospectus approved by the Bureau of Mobile
Homes of the State of Florida Department of Business and Professional
Regulation, has been provided to each tenant of the Property, if so required
Chapter 723, Florida Statutes, and the administrative rules promulgated pursuant
thereto. BUYER will not provide any prospectus to a tenant of the Property prior
to Closing unless both SELLER and BUYER have approved such prospectus in
writing.
(h) SELLER has not contracted for any services or
employment and has made no commitments or obligations therefor which will bind
BUYER as a successor in interest with respect to the Property except those
contracts listed in Exhibit "D" (the "Service Contracts"). With respect to the
Service Contracts, (i) amounts paid or payable thereunder shall be prorated
between the parties at the Closing and credits shall be given the parties as
appropriate to such prorations, and (ii) they can be terminated upon thirty (30)
days written notice or less except: (1) Septic Tank and Sewage Treatment Plant
Service Agreement, (2) Amerigas Propane Tank Lease and (3) Xxxxxxxx Xxxxxx Solid
Waste Collection and Disposal Service Agreement. .
(i) Except in the ordinary course of SELLER'S
business, SELLER will not enter into any amendment to or modification of any of
the Leases prior to the Closing Date, which will reduce, forgive, or postpone
any rents or which would otherwise materially and adversely affect the value of
the Property, without BUYER'S consent; no rents or other deposits are or will on
the Closing Date be held by SELLER, except only tenant security deposits and
prepaid rents in the ordinary course of SELLER'S business; and no commissions or
other fees payable to any person, entity or agent are due on the rentals
collected or to be collected under the Leases.
(j) Pending Closing hereunder, SELLER shall conduct
its business involving the Property in the ordinary course, and during said
period will:
(1) Refrain from entering into any contracts
or other commitments regarding the Property, other than in the ordinary and
usual course of business, without the prior written consent of BUYER;
(2) Continue to maintain and repair the
Property in at least the manner which SELLER has previously maintained and
repaired the Property, and SELLER will permit or commit no waste of the Property
which will materially and adversely affect the value of the Property;
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(3) Keep in effect SELLER'S existing
policies of public liability and hazard and extended coverage insurance insuring
the Property; and
(k) No tenant has been granted any rent concession
not reflected on the face of the copy of the lease for that tenant as provided
by SELLER to BUYER (other than as set forth on the Rent Roll).
(l) To SELLER'S knowledge no underground storage
tanks, hazardous substances, or contaminants subject to Federal, state or local
laws or regulation have been used, stored or located on, under or about the
Property in any manner contrary to applicable law and the Property is free from
environmental contamination by such hazardous substances which require
remediation except as set forth in any Phase I Environmental Audit Summary
attached hereto as Exhibit "E".
B. For purposes of this Agreement, the words "SELLER'S
knowledge", "actual knowledge" or "knowledge" shall mean only that information
that is possessed by Xxxxxx Xxxxx, Xxx Xxxxx or Xxxx Xxxxx without
investigation, inquiry, or review of files for this transaction, and shall not
include any imputed knowledge or any information that is possessed by any of
SELLER'S other employees, agents, contractors, licensees, borrowers, lenders, or
any other third parties. For purposes of this Agreement, the words "actual
notice", "written notice", "notices" or "notice" when used in reference to
SELLER'S warranties, representations, and disclosures in this Agreement shall
mean only that written notice received by Xxxxxx Xxxxx, Xxx Xxxxx or Xxxx Xxxxx,
and shall not include any other notice, whether oral or written, received by any
employees, agents, contractors, licensees, any third parties, or any
constructive notice or information not physically received by Xxxxxx Xxxxx, Xxx
Xxxxx or Xxxx Xxxxx.
C. All representations and warranties of the SELLER under this
Agreement enure solely to the BUYER, and to any assignee to whom BUYER may
assign this Agreement in accordance with paragraph 18 below, and shall not enure
to and may not be relied on by any of BUYER'S successors or assigns or by other
third parties.
D. SELLER, by executing this Agreement, agrees to indemnify,
defend and save and hold BUYER harmless from and against any and all losses,
costs, expenses, liabilities, claims, causes of action, suits or other matters
by reason of any breach of the above representations and warranties. Such
indemnification includes, but is not limited to, costs and attorneys' fees and
expenses (including attorneys' fees and expenses on appeal) reasonably incurred
in connection with the defense of any claims against BUYER by any party arising
out of the above matters. The SELLER'S foregoing indemnity obligation shall
survive Closing and delivery of the Special Warranty Deed hereunder for a period
of six (6) months and all claims of BUYER with respect to such indemnity
obligation or otherwise with respect to the representations and warranties of
SELLER set forth in this Agreement shall expire except those claims that BUYER
asserts to SELLER in writing within six (6) months after closing. This indemnity
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obligation shall survive Closing and delivery of the Special Warranty Deed
hereunder and shall include all attorneys' fees and costs incurred in collection
of all sums due from SELLER to BUYER pursuant to this Indemnity, together with
interest on said sums at the maximum rate permitted by law through collection.
E. In the event that any one or more of the representations or
warranties given by SELLER to BUYER in paragraph 6.A. above is/are determined by
BUYER between the Closing Date and the Effective Date, to be inaccurate, BUYER
shall give written notice to SELLER and SELLER shall have the option to: use its
best efforts to promptly cure the violation(s); reimburse BUYER for the
reasonable cost of cure (including all reasonable attorneys' fees, engineering
fees, or other applicable fees, costs and charges); terminate this Agreement and
direct Escrow Agent to refund the deposit to BUYER; or to contest BUYER'S
determination by written notice to BUYER, in which event BUYER shall have the
option to pursue the rights and remedies available to BUYER pursuant to
paragraph 20 of this Agreement.
F. EXCEPT AS IS OTHERWISE PROVIDED ABOVE IN THIS PARAGRAPH 6,
AND EXCEPT FOR THE WARRANTY OF TITLE, SELLER MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO
THE PROPERTY OR ANY OTHER MATTERS RELATING TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
Without limiting the foregoing, except as specifically set forth in
this Agreement, SELLER has not made, or authorized anyone to make, any warranty
or representation affecting or relating to the Property or any matter or thing
pertaining to this Agreement, no such representation or warranty shall be
implied. BUYER expressly acknowledges that no such warranty or representation
has been made and that BUYER is not relying on any warranty or representation
whatsoever other than as is expressly set forth in this Agreement. BUYER shall
accept the Property "as is", "where is", subject to all defects, in its
condition on the date of closing subject only to the express provisions of this
Agreement. Without limiting the foregoing, BUYER shall be obligated at its own
expense to assure itself that the prospectus and other materials prepared by
SELLER and used in the operation of the Property satisfy the requirements of,
and conform to, applicable laws, regulations and other applicable requirements.
Except as otherwise specifically set forth in this Agreement, SELLER makes no
warranty or representation whatsoever with respect to that prospectus and other
materials.
As a condition to BUYER'S reliance on the warranties and
representations set forth in this Agreement, BUYER shall be required to deliver
to SELLER a sworn certificate at the closing stating that, as a result of its
inspection of the Property and the books and records related thereto and all
other studies, surveys, audits, inspections, and investigations relating to this
transaction (collectively, the "Inspections"), BUYER is not aware of any matter
that constitutes, or with the passage of time or giving of notice would
constitute, a breach of SELLER'S warranties and representations in this
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Agreement, or that such breaches may exist but BUYER elects to waive all such
breaches or representations that it has discovered as a result of its
Inspections.
SELLER, on the Closing Date, shall deliver to BUYER a sworn certificate
that, as of the Closing Date, all the warranties and representations of SELLER
set forth in this paragraph 6 were true and correct on the Closing Date, subject
to the qualifications, limitations on survival and reliance and other conditions
with regard to such warranties and representations set forth in this Agreement,
all of which shall be incorporated by reference in said certificate.
7. TERMITE INSPECTION AND REPORT. Prior to the expiration of the
Inspection Period and at BUYER'S expense, BUYER may obtain a termite certificate
for the Property.
8. BUYER'S INSPECTION PERIOD.BUYER shall have a thirty (30) day period
("BUYER'S Inspection Period") commencing from the date the SELLER has mailed the
notice to the officers of the homeowners association ("HOA") contemplated by
Section 723.071(1)(c), Florida Statutes(the "Statutory Compliance") during which
time BUYER shall have the right to perform such due diligence evaluations as
BUYER may reasonably require in connection with its evaluation of the Property,
including, but not limited to, environmental, soils, flood plain, legal,
financial and engineering studies (the "Data"), all at BUYER'S sole cost and
expense. BUYER and/or any contractor of BUYER shall, prior to entry on the Real
Property hereunder, obtain casualty/liability insurance in an amount
satisfactory to SELLER, or to add SELLER to existing policies as a named
insured, and provide SELLER with a certificate of insurance evidencing that
SELLER is insured against any such loss. In the event that any inspection by
BUYER or any consultant engaged by BUYER in connection with BUYER'S due
diligence results in any damage or disturbance to the Property or any other
damage or disturbance, BUYER shall cause such consultant, or undertake itself,
at no cost to SELLER, to repair such damage and restore such Property to the
condition it was in immediately prior to such inspection within 15 days after
the damage occurs. If BUYER approves of the Data, BUYER shall deliver written
notice to SELLER indicating BUYER'S approval of the Data (the "Data Approval
Notice") prior to the expiration of the Inspection Period. If BUYER fails to
deliver the Data Approval Notice as aforesaid, the Data shall be deemed
unsatisfactory to BUYER and this Agreement shall automatically terminate, in
which event Escrow Agent shall immediately return the Deposit, plus any accrued
interest, to BUYER and the parties shall be released from any further
obligations hereunder. In connection with BUYER'S due diligence evaluations of
the Property, SELLER agrees to furnish the following information to BUYER on the
Effective Date (unless otherwise provided herein):
1. Current Rent Roll;
2. Monthly Financial Statements for the previous thirty-six (36)
months;
3. Community Prospectus or comparable State required documents;
4. Mobile Home Inventory List;
5. Previous Title Insurance Policy;
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6. Prior Survey;
7. Lists of all current and previous lawsuits;
8. Existing Environmental Phase I Report (if any);
9. True Copies of paid real estate and personal property tax bills for
the previous three (3) years;
10.True Copies of Rental Increase Notices for previous three (3)
years.
The Inspection Period shall be extended one (1) day for each
day after the Effective Date (unless otherwise provided herein) SELLER fails to
provide the foregoing to BUYER.
Should the HOA or any other statutorily recognized residents'
association elect to purchase the Property, but then fails to close for any
reason, this Agreement shall be deemed a back-up contract and the terms and
conditions of this paragraph shall control upon the termination of the
residents' contract.
BUYER'S right under this Agreement to conduct inspections and
tests shall be subject to the following conditions and restrictions:
A. If BUYER timely terminates this Agreement pursuant
to this paragraph 8, all plans, correspondence, surveys, drawings, reports,
audits and other materials obtained by or on behalf of BUYER with respect to the
Property shall promptly be delivered to SELLER, without cost to SELLER, and
shall become SELLER'S property.
B. The right of entry granted hereby shall be subject
to the rights of all tenants and occupants of the Property. BUYER and its
employees, contractors, architects, engineers, agents and representatives shall
take reasonable precautions so that BUYER'S inspections concerning the Property
and operations thereon, and entries on the Property on BUYER'S behalf, shall
cause minimum disruption to any parties in possession of the Property. Without
limiting the foregoing, BUYER agrees to make no contact or communication with
any tenant that in SELLER'S reasonable opinion may in any manner or for any
reason interfere with, disrupt, or otherwise harm relations between SELLER and
the tenant; and without prejudice to all other remedies available to SELLER,
SELLER may, if it reasonably concludes that BUYER has violated this restriction,
prohibit or restrict contacts or communications between BUYER (or its employees,
agents, representatives, or other persons acting on behalf of or at the request
of BUYER) and a tenant. Provided, however, BUYER shall be entitled to contact
members of the Board of the Homeowners Association for the Property. In order
that SELLER may protect its rights under, and enforce the requirements of, this
provision, BUYER shall contact no tenant without first obtaining SELLER'S
written consent to do so.
C. BUYER, as a condition to its exercise of its right
of entry, agrees to indemnify, defend and hold harmless SELLER from all fines,
penalties, liens, losses, costs, claims, damages, liabilities and expenses,
including reasonable attorneys fees and other costs and expenses incurred,
sustained by, or asserted against SELLER arising from the exercise by BUYER, or
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any of its agents, of this right of entry. The foregoing indemnification
provision shall survive the closing or the termination of this Agreement (for
whatever reason).
D. At all times before the closing, BUYER agrees to
hold in strict confidence and not to disclose, or cause or allowed to be
disclosed, to any person who is not an employee of BUYER without the prior
written consent of SELLER, all information and documents including this
Agreement in any way related to the Property or to the transactions contemplated
by this Agreement, except as may be required by applicable law or as otherwise
contemplated in this Agreement, and except to BUYER'S representatives, proposed
lenders and elected officials of pertinent governmental authorities, legal and
financial advisors, and other consultants, to the extent necessary for BUYER'S
analysis of the Property or performance of this Agreement. Without limiting the
foregoing confidentiality requirements, BUYER agrees that BUYER may use the Data
concerning the Property provided or made available to BUYER pursuant to this
Agreement only for the transactions contemplated in this Agreement and for no
other purpose.
9. CONDITIONS PRECEDENT. The following are conditions precedent to
BUYER'S obligation to close and consummate the transaction contemplated by this
Agreement. BUYER and only BUYER, may waive one or more of these conditions. In
the event that all of these conditions are not satisfied or fulfilled by the
Closing Date, BUYER may elect not to close this transaction, and in such event,
BUYER shall be entitled to the prompt return from Escrow Agent of the Deposit:
A. SELLER is in a position to execute at Closing, a SELLER'S
Compliance Affidavit in accordance with Florida Statutes, Chapter 723.072. If
the HOA exercises their right to purchase the Property in accordance with the
F.S. ss. 723.071(1) by signing a contract with the SELLER and in fact closes on
that contract, this Agreement shall be deemed terminated and the Deposit
returned to BUYER.
B. The representations and warranties of SELLER contained in
paragraph 6 above, and all other representations and warranties of SELLER
contained herein, shall be true and correct on the Closing Date.
10. CLOSING. The sale and purchase transaction contemplated by this
Agreement shall be closed and consummated on or before ten business (10) days
from the date of expiration of the Inspection Period on a date mutually agreed
to by the parties (the "Closing Date"). Closing shall be at the offices of
SELLER'S counsel or, at BUYER'S option, may be effected through the mail as
coordinated by counsel for SELLER and BUYER. Notice shall be given to Escrow
Agent at least five (5) days in advance of the date established by the parties
for Closing. The Closing shall be at 10:00 A.M., Eastern Standard Time on the
Closing Date unless otherwise agreed by the parties or their counsel. At
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Closing, SELLER and, as applicable, BUYER shall execute and deliver the
following documents in form acceptable to BUYER and/or undertake the following:
A. All corporate or applicable partnership certifications,
resolutions and approvals necessary to evidence both the SELLER'S and BUYER'S
authority to enter into and consummate the transactions contemplated by this
Agreement.
B. Special Warranty Deed from SELLER to BUYER conveying title
to the Real Property to BUYER free and clear of all liens, encumbrances and
matters other than the Permitted Exceptions.
C. Xxxx of Sale from SELLER to BUYER transferring the Personal
Property free and clear of all liens and encumbrances together with the original
Motor Vehicle Certificate of Title (properly endorsed and lien free) for each
mobile home unit and motor vehicle included in this purchase and sale.
D. Affidavit of No Liens by SELLER.
E. Affidavit of Non-Foreign Status by SELLER.
F. Florida Statutes, Chapter 723.072 Affidavit of Compliance
by SELLER.
G. Updated Certified rent roll dated and accurate as of the
Closing Date and certified by SELLER to BUYER.
H. Assignment from SELLER to BUYER assigning all of SELLER'S
right, title and interest, to the extent it exists and without representation or
warranty, in and to the name by which the Property is commonly known, all
authorizations, permits and licenses relating to the operation of the Property
which are assignable by SELLER, if any, and all leases, contracts and other
items required to be assigned as set forth in this Agreement free and clear of
all liens and encumbrances except for the matters permitted in this Agreement;
all of which shall be assumed by BUYER effective from and after the Closing
Date. SELLER shall undertake all action, and execute all forms, required by all
governmental authorities and contract vendors to effect this assignment.
I. Assignment by SELLER, to the extent they exist and without
representation or warranty, of all currently existing and effective claims,
guaranties, warranties, indemnification and all other rights, if any, which
SELLER may have against suppliers, laborers, materialmen, contractors, or
sub-contractors arising out of or in connection with the installation,
construction and maintenance of the Property; all of which shall be assumed by
BUYER effective from and after the Closing Date.
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J. Assignment by SELLER, to the extent they exist and without
representation or warranty, to BUYER of all agreements, if any, which SELLER has
for access and utilities to service the Property; all of which shall be assumed
by BUYER effective from and after the Closing Date.
K. Closing Statement by SELLER and BUYER.
L. A BUYER'S Certificate of No Knowledge of any breach of
SELLER'S warranties and representations, as to the representations and
warranties under paragraph 6 and as required by the last paragraph of paragraph
6.F..
M. Such other documents as are reasonably necessary to close
and consummate the purchase and sale transaction contemplated by this Agreement.
N. SELLER shall deliver to BUYER all existing plans and
specifications relating to the improvements located upon the Property which are
in SELLER'S possession or reasonably accessible to SELLER.
O. SELLER shall deliver and assign to BUYER all of SELLER'S
right, title and interest, if any, in and to all licenses, permits, certificates
of occupancy, mobile home titles (for SELLER owned mobile home units, if any)
and such other comparable certificates or documents issued by the appropriate
governmental authorities with respect to the Property or any part thereof which
are legally assignable by SELLER, if any.
P. BUYER shall deliver to SELLER the adjusted cash portion of
the Purchase Price and authorize Escrow Agent's delivery of the Deposit to
SELLER. Said sum shall be paid, at SELLER'S election, by locally drawn cashier's
check or Federal Reserve Bank wire transfer.
11. CLOSING COSTS. SELLER shall pay for the cost of any corrective
documents required for marketable and insurable title, transfer stamps on the
Special Warranty Deed and all costs associated with the issuance of the title
binder and policy. BUYER shall pay for the cost of recording the Special
Warranty Deed, any sales tax on conveyance or title transfer of any mobile
homes, vehicles or other Personal Property, for the survey, termite report and
all other due diligence and inspection costs and expenses. Each party shall bear
its own attorneys' fees and other professional costs, except as otherwise
provided for herein.
12. PRORATIONS. Except as otherwise set forth in this Agreement, all
taxes and other operating expenses and revenue of the Property shall be prorated
as of the Closing Date. Taxes shall be prorated based upon the current year's
tax taking into account the maximum available discount. If the Closing takes
place and the current year's taxes are not fixed and the current year's
assessment is available, taxes shall be prorated based upon such assessment and
the prior year's millage. If the current year's assessment is not available,
Page 12
then taxes shall be prorated on the prior year's tax taking into account the
maximum available discount. Any rents received by SELLER in respect of the
period after the Closing Date shall be promptly remitted to BUYER. With respect
to delinquent lot rental amounts, BUYER shall make a diligent attempt to collect
the same for SELLER'S benefit after closing in the usual course of operation of
the Property and any such collection shall be remitted to SELLER promptly upon
receipt by BUYER, less any expenses of such collection incurred by BUYER and
approved in advance by SELLER in writing. Nothing contained herein shall operate
to require BUYER to institute any lawsuit or other collection procedure to
collect such delinquent lot rental amounts. In this regard the first monies
collected from tenants owing delinquent lot rental amounts shall first be
applied to current rents due and then to lot rental amounts prior to the Closing
Date unless they are intended by the tenant to apply to the period prior to
closing. This obligation to remit shall survive the Closing and delivery of the
Special Warranty Deed. SELLER shall deliver to BUYER at the Closing, copies of
such statements, invoices bills and receipts as shall be requested by BUYER to
enable BUYER to verify the accuracy of the amounts of any prorations made
pursuant to this paragraph. BUYER shall be credited at Closing with all advance
rentals and tenant security deposits previously paid to SELLER. All prorations
shall be made so that SELLER has the benefit of all income and the burden of all
expenses up to and including the Closing Date and BUYER has the benefit of all
income and the burden of all expenses after the Closing Date.
13. DELIVERY OF POSSESSION. At Closing, SELLER shall deliver to BUYER
possession of the Real Property subject only to the Permitted Exceptions.
14. FIRE OR OTHER CASUALTY. For purposes of this Agreement of Sale, a
"minor casualty" shall be any casualty occurring to the Real Property which
causes damages of less than One Hundred Fifty Thousand Dollars ($150,000.00) to
the Real Property. Any other casualty shall be a "major casualty". If, prior to
Closing hereunder, the Real Property is subjected to a major or minor casualty
of which SELLER becomes aware, SELLER shall give BUYER prompt written notice
thereof. If such casualty is a minor casualty, this Agreement of Sale shall
remain in full force and effect and the purchase contemplated herein shall be
concluded with no further adjustment, and at Closing SELLER shall assign,
transfer and set over to BUYER all of the right, title and interest of SELLER in
and to any awards that have been or that may thereafter be made for such
casualty, subject only to any rights of Tenant under each Lease. If such
casualty is a major casualty which SELLER, at its option, does not repair prior
to 60 days after the original Closing Date (with the closing extended for such
60 day period), the Real Property shall be considered a defective parcel and
BUYER shall have the right to terminate this Agreement whereupon the Deposit
will be refunded to the BUYER and the parties will be released from any further
liability hereunder.
15. EMINENT DOMAIN. For purposes of this Agreement of Sale, a "minor
condemnation" shall be any taking or condemnation by any body having the power
of condemnation or eminent domain which causes damages of less than One Hundred
Fifty Thousand Dollars ($150,000.00) to the Real Property. Any other taking or
condemnation shall be a "major condemnation". If prior to Closing hereunder the
Real Property is subjected to a major or minor condemnation of which SELLER
becomes aware, SELLER shall give BUYER prompt written notice thereof. If such
Page 13
condemnation is a minor condemnation, this Agreement of Sale shall remain in
full force and effect and the purchase contemplated herein, less any interest
taken by eminent domain or condemnation, shall be effected with no further
adjustment, and at Closing, SELLER shall assign, transfer and set over to BUYER
all of the right, title and interest of SELLER in and to any awards that have
been or that may thereafter be made for such taking, subject only to rights of
Tenant under any Lease. If such condemnation is a major condemnation, the Real
Property subject to the major condemnation shall be considered a defective
parcel and BUYER shall have the right to terminate this Agreement whereupon the
Deposit will be refunded to the BUYER and the parties will be released from any
further liability hereunder
16. NOTICES. All notices and other communications under this Agreement
of Sale shall be in writing and shall be effectively given only if sent by
nationally recognized overnight courier service, postage prepaid, return receipt
requested, addressed as follows:
To SELLER: Serendipity Properties, Inc.
0000 Xxx Xxxxx Xxxx, Xxxxx 00
Xxxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxxxx, Xxxxxx et al
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
To BUYER: Asset Investors Corporation
Attn: Xxxxx X. Xxxxx, President
0 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
FAX No. (000) 000-0000
With a copy to: Community Acquisition Joint Venture
Attn: Xxxxxx X. Xxxxxx
0000 XxXxxxxxx Xx., Xxx. X
Xxxxxxxxxx, XX 00000
FAX No. (000) 000-0000
Page 14
or such other address as the party to be notified shall have designated to the
other party hereby by notice delivered in accordance herewith. All such notices
shall be deemed given on the business day next following the day such notice is
accepted for delivery by the overnight courier service.
17. ASSIGNMENT OF NAME. At Closing, SELLER shall assign to BUYER,
without limitation, all of its right, title and interest in the name by which
the Property is commonly known and hereinbefore referred to.
18. ASSIGNMENT; BINDING EFFECT. BUYER may not assign its rights and
interests under this Agreement of Sale to any party other than to Asset
Investors Corporation or to Asset Investors Operating Partnership or to any
affiliate thereof, without first obtaining the prior written consent of SELLER,
which consent may be withheld in SELLER'S sole discretion. "Affiliate" shall
have the meaning set forth in Rule 12 (b)-2 of the General Rules and Regulations
under the Securities and Exchange Act of 1934, as amended. Prior to the
expiration of the Inspection Period, BUYER will notify SELLER of the identity of
any proposed assignee of this Agreement of Sale. This Agreement shall find the
parties hereto and their respective heirs and assigns.
19. SUPPLIES. Inventories of supplies, including but not limited to
paint, toilet tissue, soap, paper towels and all cleaning materials, if any
located on the Real Property on the Closing Date shall be transferred to BUYER
at no additional cost at the time of Closing and shall be covered by the Xxxx of
Sale.
20. DEFAULT BY SELLER. If, under the provisions of this Agreement,
SELLER shall be obligated to complete the sale of the Property but fails to do
so within the applicable period provided for closing and such default continues
for a period of fifteen (15) days after written notice thereof from BUYER to
SELLER, or shall otherwise fail to perform any of the other obligations of
SELLER hereunder within the required time period, BUYER shall have the option,
to be exercised in its sole discretion, to: (a) apply to the Circuit Court of
the County where the Real Property is located to seek to have specific
performance under this Agreement and in such action shall have the right to
recover legally cognizable damages suffered by BUYER by reason of the delay in
BUYER'S acquisition of the Property; or (b) xxx SELLER for legally cognizable
damages sustained by BUYER by reason of the default of SELLER provided, however,
that in no event shall the damages recoverable exceed four percent (4%) of the
gross purchase price; or (c) obtain the prompt return from Escrow Agent of the
Deposit, with interest, together with any other amounts due and owing to BUYER
pursuant to the terms of this Agreement, and thereafter terminate this
Agreement.
21. DEFAULT BY BUYER. If, under the provisions of this Agreement, BUYER
shall be obligated to complete the purchase of the Property but fails to do so
within the applicable period provided for closing, and such default continues
for a period of fifteen (15) days after written notice thereof from SELLER to
BUYER, SELLER'S sole right and exclusive remedy against BUYER shall be to obtain
the Deposit (a) as consideration for the execution of this Agreement; (b) as
agreed on liquidated damages sustained by SELLER because of such default by
Page 15
BUYER (the parties hereto agreeing that the retention of such funds shall not be
deemed a penalty, and recognizing the impossibility of precisely ascertaining
the amount of damages to SELLER because of such default and hereby declaring and
agreeing that the sum so retained is and represents the reasonable damages of
SELLER); (c) in full settlement of any claims of damages and in lieu of a
specific performance by SELLER against BUYER; and (d) in consideration for the
full and absolute release of BUYER by SELLER of any and all further obligations
under this Agreement. In the event BUYER defaults hereunder, BUYER shall
forthwith on demand by SELLER return to SELLER all title papers and other
documents relating to the Property, including BUYER'S copy of this Agreement.
22. PROVISIONS WITH RESPECT TO ESCROW.
(a) The duties and obligations of Escrow Agent hereunder shall
be entirely administrative and ministerial and not discretionary. Escrow Agent
shall be under no responsibility in respect of the Deposit other than to
faithfully follow the instructions herein contained. Escrow Agent may
conclusively rely upon any instructions or documents delivered to it by BUYER
and SELLER and purportedly executed by a duly authorized officer or partner
thereof and shall be under-no duty of independent inquiry with respect to any
facts or circumstances recited therein. In the event that any notice or
instruction required to be delivered to Escrow Agent hereunder is not so
delivered, Escrow Agent may hold the Deposit, if any, pending delivery to Escrow
Agent of such instruction or notice and may exercise all of Escrow Agent's
rights and remedies hereunder or otherwise provided by law. The parties hereto
jointly and severally agree to reimburse and indemnify Escrow Agent for, and
hold Escrow Agent harmless against, any loss, liability or expense, including
but not limited to, reasonable attorney's fees, which may be asserted against
Escrow Agent or to which Escrow Agent may be exposed or which may be incurred by
reason of the acceptance of, or the performance of duties and obligations under
this Agreement of Sale, except arising from such Escrow Agent's gross negligence
or willful misconduct. In no event shall Escrow Agent be liable for any loss,
cost or damage arising out of the performance of its duties hereunder, except
for acts of gross negligence or willful misconduct.
(b) In the event of any dispute or disagreement in connection
with the performance by Escrow Agent of its duties under this Agreement of Sale,
including, but not limited to, the respective rights of the parties to the
Deposit, Escrow Agent may consult with counsel selected and employed by Escrow
Agent, and Escrow Agent shall suffer no liability for any action taken or
suffered in good faith in accordance with the opinion of such counsel, if any,
provided, however, that the Deposit shall be disbursed in accordance with the
terms of this Agreement of Sale. Notwithstanding any other provision of this
Agreement of Sale, if any dispute or difference arises among the parties or if
any conflicting demand shall be made upon Escrow Agent, Escrow Agent shall not
be required to determine the same or take any action thereon. Rather, Escrow
Agent may await settlement of the controversy by appropriate legal proceedings;
or Escrow Agent may, by written notice to the parties hereto, initiate
litigation to determine to whom the Deposit held under this Agreement of Sale
shall be delivered; or Escrow Agent may file suit in interpleader with the
proper court in the United States District Court for the Eastern District of New
York, for the purpose of having the respective rights of the parties
adjudicated. Escrow Agent, upon initiation of such suit, may deposit with the
Page 16
court the Deposit and, upon giving notice thereof to the parties hereto, Escrow
Agent shall be fully released and discharged from all further obligations
hereunder with respect to the Deposit except arising from gross negligence or
willful misconduct of Escrow Agent. The parties acknowledge that Escrow Agent is
the attorney for SELLER and, in the event any dispute of difference arises among
the parties, Escrow Agent may continue to represent SELLER in such dispute
notwithstanding it's role as Escrow Agent.
23. ACCEPTANCE DATE. SELLER shall have until 5:00 P.M. (EST) on the
fifth (5th) business day following BUYER's Execution Date, within which to
accept this Agreement. In the event SELLER fails to accept this Agreement as of
that time and date, this Agreement shall be null and void and of no further
effect and BUYER shall be entitled to the prompt return from Escrow Agent of the
Deposit.
24. BROKER'S COMMISSION. Xxx Xxxxxx of United American Realty Inc.,
X.X. Xxx 000, Xxxxx, Xxxxxxx 00000, has acted as broker. On closing, SELLER
shall pay said broker a commission of Sixty Thousand ($60,000) Dollars. BUYER
shall pay said broker any commission agreed upon by BUYER in excess of $60,000,
if any. SELLER shall pay any commission to Xxxxxx Xxxxx Realty, Inc. agreed upon
by SELLER. Except as stated in this section, neither SELLER nor BUYER has
contacted any real estate broker, finder, or similar person in connection with
the transaction contemplated hereby and that neither party is obligated to pay
any brokerage fee or commission in connection with this sale. SELLER and BUYER
each hereby agree to indemnify and hold harmless the other from and against any
and all claims for commissions or similar charges with respect to this
transaction, arising by, through or under the indemnifying party, and each
further agrees to indemnify and hold harmless the other from any loss or damage
resulting from any inaccuracy in the representations contained in this section.
This indemnification agreement of the parties shall survive the closing.
25. SURVIVAL OF AGREEMENT. The terms and conditions of this Agreement
which expressly so state shall survive the Closing hereof.
26. TIME IS OF THE ESSENCE. SELLER and BUYER acknowledge that time is
of the essence of this Agreement.
27. ENTIRE AGREEMENT; MODIFICATIONS. The parties acknowledge that this
Agreement is the entire agreement between the parties with respect to the
subject matter hereof, and there are no oral or written agreements between the
parties, nor any representations made by either party relative to the subject
matter hereof which are not expressly set forth herein. This Agreement cannot be
modified without a written agreement executed by both parties.
28. ATTORNEYS' FEES. In the event of any litigation between the parties
arising out of this Agreement, or the collection of any funds due BUYER or
SELLER pursuant to this Agreement, the prevailing party shall be entitled to
recover all costs incurred and reasonable attorneys' fees and expenses incurred.
Page 17
As used herein and throughout this Agreement, the term "attorneys' fees" shall
be deemed to include all fees incurred whether by attorneys, paralegals, legal
assistants or law clerks whether in pretrial, trial, appeal, bankruptcy,
collection or declaratory proceedings. The provisions of this paragraph shall
survive Closing and delivery of the Special Warranty Deed.
29. EXHIBITS. In the event that any exhibit which is referred to in
this Agreement is not attached hereto at the time of execution of this Agreement
by SELLER and BUYER, SELLER shall promptly cause any such missing exhibit to be
prepared and submitted to BUYER for BUYER'S approval within fifteen (15) days
from the Effective Date hereof. Upon approval of a given exhibit by BUYER, the
same shall be incorporated into this Agreement by written agreement executed by
SELLER and BUYER.
30. CONSTRUCTION. This Agreement has been negotiated between the
parties, each of whom have been represented by counsel. Accordingly, this
Agreement shall not be construed against either party as the drafter of the
Agreement in the event of any litigation with respect to it. Whenever required
by the context or use in this Agreement, the singular word shall include the
plural word and the masculine gender shall include the feminine and/or neuter
gender, and vice versa. The paragraph titles, headings, and/or captions
contained herein have been inserted solely as a means of reference and
convenience. Such captions shall not affect the interpretation or construction
of this Agreement and shall not define, limit, extend, or otherwise describe the
scope of this Agreement or the intent of any provision hereof.
31. RADON GAS Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in the State in which
the Real Property is located. Additional information regarding radon and radon
testing may be obtained from your county public health unit.
32. VENUE AND GOVERNING LAW. Venue for any legal proceeding hereunder
shall be in the State of Florida and this Agreement shall be governed by the
laws of Florida.
33. TAX DEFERRED EXCHANGE (ss. 1031). In the event, prior to closing,
SELLER shall desire to restructure this transaction as a tax deferred exchange
for property identified by SELLER, pursuant to ss. 1031 of the Internal Revenue
Code, BUYER, as an accommodation to SELLER, shall enter into and execute any
such amendatory documentation as SELLER may reasonably request; provided
however, that BUYER shall not incur any additional cost, expense, risk,
potential liability or delay whatsoever on account thereof. BUYER shall have no
liability to SELLER whatsoever in the event the subject transaction is found,
held or adjudicated not to qualify as or as a part of a tax deferred exchange
pursuant to ss. 1031 of the Internal Revenue Code. Notwithstanding the
foregoing, no failure to close of any transaction involving any premises to be
exchanged shall affect SELLER'S obligation to convey the Property as and when
required hereunder.
Page 18
34. MODEL HOMES. SELLER may sell prior to closing two (2) 1997
manufactured homes, in which event they shall be excluded from this transaction.
In the event one or more of such homes have not been sold by SELLER as of the
day of closing, then BUYER shall purchase such homes from SELLER for the price
listed on Exhibit "F" attached hereto. In the event one of such homes has been
sold and a used mobile home taken in trade by SELLER, BUYER shall purchase such
used mobile home from SELLER at closing at its appraised fair market value (not
to exceed $40,000 for each such used mobile home).
35. EFFECTIVE DATE. Unless otherwise set forth herein, the Effective
Date shall be the date this Agreement is executed by the SELLER, so long as
SELLER returns a fully executed duplicate original of this Agreement to the
BUYER, by either hand delivery or postmarked as of the date of the execution of
this Agreement by the SELLER. Each day of delay in returning the executed
Agreement to the BUYER shall likewise extend the Effective Date.
36. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
37. FACSIMILE. A facsimile of this Agreement or any portion hereof,
including the signature page of any party, shall be deemed an original for all
purposes.
Page 19
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year indicated below.
WITNESSES: COMMUNITY ACQUISITION JOINT VENTURE, a
Delaware partnership
By: COMMUNITY ACQUISITION AND
DEVELOPMENT CORPORATION, a Delaware
corporation
By:______________________________
Print Name:___________________ Xxxxxx X. Xxxxxx, President
"BUYER"
Print Name:___________________
As to BUYER BUYER'S execution date: March ___, 1998
SERENDIPITY PROPERTIES, INC., a Florida
corporation
By:________________________________
Print Name:___________________ Print Name: Xxxxxx Newby__________
Title: President_______________
Print Name:___________________ "SELLER"
As to SELLER
SELLER'S execution date: March ___, 1998
JOINDER
______________________________ of ________________________________
joins in this Agreement of Sale for the sole purpose of agreeing to act as
Escrow Agent and to be legally bound to hold the Deposit in accordance with the
provisions in Paragraphs 3(a) and 22 hereof.
By:_______________________________
Print Name:_______________________
As Escrow Agent
Page 20
SCHEDULE OF EXHIBITS
EXHIBIT "A" Metes and Bounds Description of the Property
EXHIBIT "B" Schedule of Personal Property
EXHIBIT "C" Rent Roll
EXHIBIT "D" Service Contracts
EXHIBIT "E" Phase I Environmental Audit Summary
EXHIBIT "F" Model Mobile Home Prices
Page 21
