Exhibit 10.21
CHICAGO TITLE INSURANCE COMPANY
1819 MAIN STREET, SUITE 360, SARASOTA, FLORIDA 00000 (000) 000-0000 FAX (941)
000-0000
September 17, 1998
Xxxxxx Xxxxxxxxx, Esq.
Xxxxxxx & Xxxxxx
Three First National Plaza, Suite 4000
Xxxxxxx, Xxxxxxxx 00000
Re: Clover Leaf Mobile Home Park, Hernando County, Florida
Our file #229702611
Dear Xx. Xxxxxxxxx:
At the request of Xxxxx Xxxxx, enclosed are two original executed copies of the
Contract for Sale between Angeles Park Communities, Ltd. and Hometown America,
L.L.C.
Please return the enclosed W-9 form, escrow agreement and investment of funds
agreement to this office as soon as possible.
Yours truly,
Xxxxxx Xxxxx
Title Examiner
/sj
cc: Xxxxx Xxxxx w/copy contract
Xxxxx Xxxxxxx w/original contract
CONTRACT OF SALE
(CLOVER LEAF MOBILE HOME PARK)
THIS CONTRACT OF SALE (this "Contract") is made and entered into by and
between ANGELES PARK COMMUNITIES, LTD., a California limited partnership
("Seller"), and HOMETOWN AMERICA, L.L.C., a Delaware limited liability company
("Purchaser").
ARTICLE 1.
SALE OF THE PROPERTY
1.1 Property. For the consideration and upon and subject to the terms,
provisions and conditions of this Contract, Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, the following described property
(collectively, the "Property"):
(a) That certain tract or parcel of land (the "Land") located in Hernando
County, Florida, which is currently being used as a mobile home park and is more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes, together with all improvements, structures and fixtures, if any,
located on the Land (the "Improvements"), and all rights, titles and interests
of Seller appurtenant to the Land and Improvements, including, without
limitation, appurtenant easements, adjacent roads, highways and rights-of-way;
(b) All tangible personal property of any kind (the "Personalty") owned by
Seller and attached to or located on the Land or Improvements, including.-
without limitation, water xxxxx, water supply systems, sewers, sewage treatment
systems and electric, gas, propane, cable, telephone and other utility lines,
equipment and distribution systems, if any exist (collectively, the
"Utilities");
(c) All of Seller's rights, titles and interests under any leases or other
agreements (including, without limitation, the Prospectus and Rental
Applications with respect to the Property) demising space in or providing for
the use or occupancy of the Improvements or Land (the "Tenant Leases"), and all
unapplied deposits, whether security or otherwise and prepaid rents
("Deposits"), paid by tenants ("Tenants") under the Tenant Leases;
(d) All of Seller's rights, titles and interests in and to all service,
maintenance and management contracts affecting or entered into with respect to
the Property (the "Service Contracts") that Purchaser is required to assume, as
provided in Section 5.2 hereof, and all warranties, guaranties and bonds in
effect at Closing relating to the Land, the Improvements or the Personalty, to
the extent the same are assignable; and
(e) All transferable consents, authorizations, variances, licenses,
permits, governmental approvals, and certificates of occupancy, if any, issued
by any governmental authority with respect to the operation of the Property
(collectively, the "Governmental Permits").
ARTICLE 11.
PURCHASE PRICE
2.1 Purchase Price. The total Purchase Price (herein so called) to be paid
by Purchaser to Seller for the Property shall be an amount equal to Sixteen
Million Five Hundred Thousand and No/100 Dollars ($16,500,000.00). The Purchase
Price shall be payable by Purchaser to Seller in Current Funds (defined below)
at the Closing (hereinafter defined).
ARTICLE III.
XXXXXXX MONEY DEPOSIT
3.1 Amount and Timing. Within five (5) business days after the Effective
Date, Purchaser shall deliver to Chicago Title Insurance Company, located at
0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxx (the "Title
Company"), Two
and No/100 Dollars in cash or Current Funds, to be held by the Title Company in
escrow to be applied or disposed of by the Title Company as is provided in this
Contract In the event Purchaser fails to deposit the Xxxxxxx Money Deposit with
the Title Company as herein provided, this Contract shall automatically
terminate, and neither Seller nor Purchaser shall have any further obligations
hereunder except for provisions of this Contract which expressly survive the
termination of this Contract. As used in this Contract, the term "Current Funds"
shall mean wire transfers, certified funds or a cashier's check in a form
acceptable to the Title Company which would permit the Title Company to
immediately disburse such funds. returned to Purchaser
3.2 Application and Interest. If the purchase and sale hereunder is
consummated, then the Xxxxxxx Money Deposit shall be at Closing. In all other
events, the Xxxxxxx Money Deposit shall be disposed of by the Title Company as
provided in this Contract. The Xxxxxxx Money Deposit shall be invested in an
interest-bearing account with a financial institution and in a manner reasonably
acceptable to Purchaser. All interest earned on the Xxxxxxx Money Deposit is
part of the Xxxxxxx Money Deposit, to be applied or disposed of in the same
manner as the Xxxxxxx Money Deposit under this Contract,
3.3 Demand for Xxxxxxx Money Deposit. If for any reason the Closing does
not occur and either party makes a written demand upon the Title Company for
payment of the Xxxxxxx Money Deposit, the Title Company shall give written
notice to the other party of such demand. If the Title Company does not receive
a written objection from the other party to the proposed payment within ten (10)
days after the giving of such notice, the Title Company is hereby authorized to
make such payment. If the Title Company does receive such written objection
within such ten (10) day period or if for any other reason the Title Company in
good faith shall elect not to make such payment, the Title Company shall
continue to hold such amount until otherwise directed by written instructions
from both parties to this Contract or a final judgment of a court of competent
jurisdiction which is not subject to further appeal. The parties acknowledge
that the Title Company is acting solely as a stakeholder at their request and
for their convenience, that the Title Company shall not be deemed to be the
agent of either of the parties, except as expressly set forth herein, and that
the Title Company shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith, in willful disregard
of this Contract or of any escrow agreement or involving gross negligence. The
Title Company joins in the execution of this Contract solely for the purpose of
acknowledging receipt of the Xxxxxxx Money Deposit and its agreement to hold the
same pursuant to the terms hereof.
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. Not later than fifteen (15) days after the Effective
Date, Seller shall cause to be furnished to Purchaser, a current ALTA Commitment
for Title Insurance for the Land and Improvements (the "Title Commitment")
issued by the Title Company. The Title Commitment shall set forth the state of
title to the Property, including a list of conditions or exceptions to title
affecting the Property that would appear in an Owner's Policy of Title
Insurance, if one were issued. The Title Commitment shall contain the expressed
commitment of the Title Company to issue the Title Policy (hereinafter defined)
to Purchaser in the amount of the Purchase Price, insuring the title to the
Property specified in the Title Commitment. At such time as the Title Commitment
is furnished to Purchaser, the Title Company shall also furnish to Purchaser
copies of instruments or documents (the "Exception Documents") that create or
evidence conditions or exceptions to title affecting the Property, as described
in the Title Commitment.
4.2 Survey. Seller has previously provided to Purchaser a copy of the
latest survey of the Land and Improvements ("Seller's Survey") in Seller's
possession. Seller shall, not later than five (5) days after the Effective Date,
engage a surveyor, at Seller's cost, to update the Seller's Survey so that it is
certified to Seller, Purchaser and the Title Company as having been prepared in
accordance with the 1992 minimum standard detailed requirements for an Urban
Land title Survey jointly adopted by the American Land Title Association and the
American Congress of Surveying and Mapping and, include (a) Table Items 1-4 and
6-11, (b) a legal description of the Land, and (c) a certification that no part
of the Land is included in an area which has been designated by the Secretary of
Housing and Urban Development as a flood plane or flood hazard d area or, if any
portion of the Land is in a flood prone or flood hazard area, indicate the
portion of the Land located therein (the survey acceptable to Purchaser and
Title Company is hereinafter referred to as the "Survey").
4.3 Review of Title and Survey. Purchaser shall have until ten (10) days
after receipt of the last of the Title Commitment, Exception Documents, and
Survey in which to notify Seller in writing (the "Title Objection Notice") of
any objections Purchaser has to any matters shown or referred to in the Title
Commitment, the Exception Documents or on the Survey. Any title encumbrances,
exceptions or other matters which are set forth in the Title Commitment, the
Exception Documents or on the Survey, and to which Purchaser does not object
within the aforementioned ten (10) day period, shall be deemed to be permitted
exceptions to the status of Seller's title (such encumbrances, exceptions or
other matters, together with such other matters included pursuant to other
provisions of this Contract, shall be referred to as the "Permitted
Exceptions").
4.4 Objections - jections to Status of Title and Survey. If Purchaser
property objects to any item shown or referred to in the Title Commitment,
Exception Documents or Survey within the ten (10) day period set forth in
Section 4.3, Seller shall be given until ten (10) days after receipt of the
Title Objection Notice to notify Purchaser whether or not Seller will cure,
prior to Closing and at Seller's option and sole discretion but without any
obligation to do so, any objection to the condition of title raised by
Purchaser. If Seller notifies Purchaser that it elects not to cure any such
objections, then Purchaser may, at its option exercisable within five (5) days
following the date of receipt by Purchaser of written notice from Seller stating
that Seller is unable or unwilling to cure such objections, either (a) accept
such title as Seller can deliver, in which case all exceptions to title set
forth in the Title Commitment, Exception Documents and Survey which are not
removed shall be deemed to be Permitted Exceptions, or (b) terminate this
Contract by notice in writing to Seller in which event the Title Company shall
return the Xxxxxxx Money Deposit to Purchaser and neither party shall have any
further rights, duties or obligations hereunder, except for provisions of this
Contract which expressly survive termination of this Contract. In the event
Purchaser fails to notify Seller, within such five (5) day period, that
Purchaser has elected to proceed under either subpart (a) or (b) of the
immediately preceding sentence, Purchaser shall be deemed to have elected to
proceed under subpart (a), and this Contract shall remain in full force and
effect. If Seller notifies Purchaser that it elects to cure any such objections
but is unable to cure same by Closing or if Seller fails to notify Purchaser of
its intentions with respect to such objections and fails to cure same by
Closing, then Purchaser may, at its option, either (x) accept such title as
Seller can deliver in which case the parties shall proceed with Closing and all
exceptions to title set forth in the Title Commitment, Exception Documents and
Survey which are not removed shall be deemed to be Permitted Exceptions, or (y)
terminate this Contract by notice in writing to Seller at Closing, in which
event the Title Company shall return the Xxxxxxx Money Deposit to Purchaser and
neither party shall have any further rights, duties or obligations hereunder
except for provisions of this Contract which expressly survive termination of
this Contract.
4.5 Other Permitted Exceptions. The Permitted Exceptions shall include
those matters shown in the Title Commitment and the Survey which become
Permitted Exceptions pursuant to Sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) taxes and assessments not yet due and
payable for the year in which Closing occurs and subsequent years; (c) liens and
encumbrances arising after the date hereof to which Purchaser consents in
writing; and (d) any liens or encumbrances of a definite or ascertainable amount
not exceeding $50,000.00, provided that (i) Seller causes such liens or
encumbrances to be released, insured or bonded around such that same do not
appear as an exception in the Title Policy issued to Purchaser pursuant to the
Title Commitment, and (ii) Seller agrees to indemnify Purchaser from all losses
incurred by Purchaser as a result of such liens or encumbrances.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period. Purchaser shall have a period of time commencing on
the Effective Date and expiring at 5:00 p.m., Brooksville, Florida time on the
forty-fifth (45"') day thereafter (the "Inspection Period"), within which to
examine the Property and to conduct its feasibility study of the Property.
Seller agrees that, during the Inspection Period, Seller will allow Purchaser
and Purchaser's agents access to the Property during normal business hours to
conduct soil and engineering, hazardous waste, marketing, feasibility, zoning
and other studies or tests and to otherwise determine the feasibility of the
Property for Purchaser's intended use. Notwithstanding the foregoing, (a) the
costs and expenses of Purchaser's investigation shall be borne solely by
Purchaser, (b) prior to the expiration of the Inspection Period, Purchaser shall
restore the Property to the condition which existed prior to Purchaser's entry
thereon and investigation thereof to the extent the condition of the Property
was affected by or as a result of the actions of Purchaser or its agents,
contractors or representatives, (c) Purchaser shall not unreasonably interfere,
interrupt or disrupt the operation of Seller's business on the Property and,
further, such access by Purchaser and/or its agents shall be subject to the
rights of Tenants under Tenant Leases, (d) in the event the transaction
contemplated by this Contract does not close for any reason, Purchaser shall
deliver to Seller a descriptive listing of all tests, reports and inspections
conducted by Purchaser with respect to the Property and deliver copies thereof
to Seller, (e) Purchaser shall not permit any mechanic's or materialman's liens
or any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted pursuant to this Section 5.1, (f)
Purchaser shall give notice to Seller a reasonable time prior to entry onto the
Property and shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property, and (g)
Purchaser shall take all reasonable actions and implement all protections
necessary to ensure that all actions taken in connection with the investigations
and inspections of the Property, and all equipment, materials and substances
generated, used or brought onto the Property pose no material threat to the
safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons. This Contract, the terms and
conditions of this Contract, and all information made available by Seller to
Purchaser in accordance with this Contract or obtained by Purchaser in the
course of its investigations shall be treated as confidential information by
Purchaser, and, prior to the purchase of the Property by Purchaser, Purchaser
shall use its best efforts to prevent its agents and employees from divulging
such information to any third parties except as reasonably necessary to third
parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers. Purchaser shall indemnify,
defend and hold Seller harmless for, from and against any and all claims,
liabilities, causes of action, damages, liens, losses, costs and expenses
(including, without limitation, attorneys' fees) incident to, resulting from or
in any way arising out of any of Purchaser's and its agents', contractors' and
representatives' activities on the Property (whether before, on or after the
Effective Date), including, without limitation, any tests or inspections
conducted by Purchaser or its agents, contractors or representatives on the
Property. The agreements contained in this Section 5.1 shall survive the Closing
and not be merged therein and shall also survive any termination of this
Contract.
5.2 Approval of Inspections. If Purchaser determines at any time prior to
the expiration of the Inspection Period, that the Property is not satisfactory
to Purchaser in Purchaser's sole opinion and within Purchaser's sole discretion,
then Purchaser may deliver written notice of termination to Seller within such
Inspection Period, given in accordance with the provisions of Section 13.1
hereof, in which event the Title Company shall return the Xxxxxxx Money Deposit
to Purchaser and neither party shall have any further rights, liabilities or
obligations hereunder, except for provisions of this Contract which by their
terms expressly survive the termination of this Contract. If Purchaser does not
timely deliver written notice of termination within such Inspection Period, the
conditions of this Section 5.2 shall be deemed satisfied, and Purchaser shall be
deemed to have approved the condition of the Property and may not thereafter
terminate this Contract pursuant to this Section 5.2. Prior to the end of the
Inspection Period, Purchaser shall deliver written notice (the "Service Contract
Termination Notice") to Seller of any Service Contracts which Purchaser does not
wish to assume; provided, that Purchaser shall be required to assume any Service
Contracts which are not terminable by notice within the time between Seller's
receipt of such Service Contract Termination Notice and the Closing Date. Any
Service Contracts which Purchaser does not specify be terminated in the Service
Contract Termination Notice delivered prior to the end of the Inspection Period,
and any Service Contracts specified in the Service Contract Termination Notice
which cannot be terminated without penalty prior to the Closing Date, shall be
deemed approved by Purchaser and shall be assumed by Purchaser at Closing.
5.3 Matters to be Delivered by Seller. Seller has previously delivered or,
no later than ten (10) days from the Effective Date Seller shall deliver, to
Purchaser the following items (collectively, the "Submission Matters"):
(a) A current rent roll for the Property, and a copy of the Prospectus
and Rental Application used with respect to the Property;
(b) Copies of any and all Service Contracts relating to the ownership
and operation of the Property;
(c) Copies of the most recent (for the prior twelve (12) month period)
real estate and personal property tax statements and utility bills received by
Seller with respect to the Property;
(d) Any environmental (including, without limitation, asbestos) or
engineering studies, audits or reports regarding the Property which Seller has
in its possession; provided, that Purchaser is advised, and hereby acknowledges,
that such studies have not been addressed to or prepared for Purchaser and,
therefore, Purchaser may not rely upon the same;
(e) All surveys, as-built drawings, certificates of occupancy, and
governmental permits and licenses relating to the Property (including, without
limitation, the operation and provision of all Utilities thereon) in Seller's
possession; and
(f) Unaudited operating statements prepared for the Property for the two
(2) most recent preceding calendar years.
Seller will also allow Purchaser to review copies of existing Tenant Leases
at Seller's management office at the Property.
Purchaser agrees that if, for any reason, it does not purchase the
Property, Purchaser shall return to Seller all Submission Matters received by
Purchaser without retaining copies thereof.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller as of the date hereof and as of the Closing Date (hereinafter
defined) as follows (which representations and warranties shall survive the
Closing for a period of 270 days): (a) Purchaser is a limited liability company
duly organized and validly existing under the laws of the State of Delaware; (b)
Purchaser has full right and authority to enter into this Contract and to
consummate the transactions contemplated herein; (c) each of the persons
executing this Contract on behalf of Purchaser is authorized to do so; and (d)
this Contract constitutes a valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms.
6.2 Representations and Warranties of Sell . Seller represents and warrants
to Purchaser as of the date hereof and as of the Closing Date as follows (which
representations and warranties shall survive the Closing for a period of 270
days):
(a) Seller is a limited partnership validly existing and duly organized
under the laws of the State of California;
(b) Subject to Seller's compliance with the provisions of Section 12.3
hereof, Seller has full right and authority to enter into this Contract and to
consummate the transactions contemplated herein;
(c) Each of the persons executing this Contract on behalf of Seller is
authorized to do so;
(d) This Contract constitutes a valid and legally binding obligation of
Seller, enforceable in accordance with its terms;
(e) Seller has no current actual knowledge of any person or entity with
any right of first refusal, option or similar rights to acquire any interest in
the Property or any material part thereof (other than the rights of Tenants as
set forth in the Rent Roll);
(f) To Seller's current actual knowledge, except as shown on (i) the rent
roll delivered pursuant to Section 5.3(a) (as to the representation made on the
date of this Contract), or (ii) the rent roll delivered on the Closing Date
pursuant to Section 8.2(a) below (as to the representation made as of the
Closing Date) (as applicable, the "Rent Roll"), there are no persons in
possession or occupancy of the Property, or any part thereof, nor are there any
persons who have possessory rights with respect to the Property or any part
thereof,
(g) To Seller's current actual knowledge, the Rent Rolls delivered
hereunder are true and correct in all material respects as of the date of such
Rent Rolls;
(h) To Seller's current actual knowledge, except with respect to any
matter specified in any Submission Matters (or other materials) delivered to
Purchaser (including, without limitation, that certain Phase I Environmental
Site Assessment Update dated March 23, 1998, that certain Report -Phase 11 Site
Assessment dated July 9, 1998, and that certain Property Condition Review Report
dated March 11, 1998, all prepared by Dames & Xxxxx Group Company), Seller has
received no written notice of any current or uncured violation of any (i)
zoning, subdivision, platting, building, fire, insurance, safety, health,
environmental or other applicable laws, ordinances or regulations, with respect
to the Property or the occupancy or operation thereof, (ii) permit, certificate
or license issued by a city, county or other governmental. authority with
respect to the Property or the occupancy or operation thereof, or (iii) Service
Contract;
(i) To the Seller's current actual knowledge, neither the execution or
delivery of this Contract, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions
hereof conflict with or result in a material breach of any of the terms,
conditions or provisions of any material agreement or instrument to which the
Seller is a party or by which Seller or the Property is bound; and
0) Except as specified on Schedule 6.2(j) to this Contract, Seller has
received no written notice of any claims, causes of action, lawsuits or legal
proceedings pending or threatened regarding the ownership, use or possession of
the Property or the provision of the utilities thereto, including without
limitation condemnation or similar proceedings. Seller hereby agrees that it
will indemnify, defend and hold Purchaser harmless for, from and against the
claims and causes of action included within the lawsuit described on Schedule
6.2(j) to this Contract to the extent that such claims or causes of action
accrue and arise prior to the Closing Date.
6.3. Survival/Knowledge. The representations and warranties contained in
this Contract shall sui ive the Closing Date for a period of two hundred seventy
(270) days from the Closing Date.
Any claim made under the representations and warranties contained in this
Contract must be asserted by filing a cause of action in a court of competent
jurisdiction against the party making such representation or warranty within
said two hundred seventy (270) day period, or such claim shall be forever
barred. As used herein, the term "Seller's current actual knowledge" shall mean
and refer to only the current actual knowledge of the Designated Representative
(as hereinafter defined) of the Seller and shall not be construed to refer to
the knowledge of any other partner, officer, director, agent, employee or
representative of the Seller, or any affiliate of the Seller, or to impose upon
such Designated Representative any duty to investigate the matter to which such
actual knowledge or the absence thereof pertains, or to impose upon such
Designated Representative any individual personal liability. As used herein, the
Term "Designated Representative" shall refer to Xxxxx X. Xxxxx and Xxx Xxxxx.
6.4 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT OR
THE DEED TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE, AND SELLER HEREBY
SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING, (a) THE NATURE AND
CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE
EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR
USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE
PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY AND
ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY
SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS, EXCEPT FOR ANY
REPRESENTATIONS OR WARRANTIES EXPRESSLY SPECIFIED HEREIN. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN AND EXCEPT FOR
ANY WARRANTY OF TITLE CONTAINED IN THE DEED TO BE DELIVERED BY SELLER TO
PURCHASER AT CLOSING, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, WITH
RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE
DEED), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE
COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION
MATTERS) PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER
OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY
SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER
MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH
INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED
OR TO BE PROVIDED BY SELLER REGARDING THE PROPERTY. FURTHER, AND WITHOUT IN
ANY WAY LIMITING ANY OTHER PROVISION OF THIS CONTRACT, EXCEPT AS EXPRESSLY
SPECIFIED HEREIN SELLER HAS NOT MADE ANY REPRESENTATION, WARRANTY OR GUARANTY,
AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR Written, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR
DISPOSAL ON OR BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF
HAZARDOUS SUBSTANCES OR MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC
UNDER ANY LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION
PERTAINING TO ENVIRONMENTAL OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP
OR DISCLOSURE (INCLUDING, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO
LIABILITY TO PURCHASER THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE,
SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR GUARANTY REGARDING
THE ACCURACY OF ANY ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE
SUBMISSION MATTERS. BY ACCEPTANCE OF THIS CONTRACT AND THE DEED TO BE DELIVERED
BY SELLER AT THE CLOSING, PURCHASER ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY
FOR INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY
THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER'S OWN
DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH
HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE
PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS. PURCHASER AGREES THAT
SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING,
SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL
BE PERFORMED AT THE SOLE COST AND EXPENSE OF PURCHASER.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY FULLY
RELEASES AND DISCHARGES SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS,
REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL REPRESENTATIVES,
HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE,
DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO ANY CONSTRUCTION
DEFECTS, ERRORS, OMISSION,OR OTHER CONDITIONS AFFECTING THE PROPERTY; PROVIDED,
THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF ANY, AS A RESULT OF
ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING FALSE WHEN MADE.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE GIVEN FULL
FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS,
INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO UNKNOWN AND SUSPECTED CLAIMS,
DAMAGES AND CAUSES OF ACTION. THIS COVENANT RELEASING SELLER SHALL BE BINDING
UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS SECTION 6.4 (INCLUDING, WITHOUT LIMITATION, THE
WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE CLOSING OR
EARLIER TERMINATION OF THIS CONTRACT.
6.5 No Reliance on Documents. Except as expressly stated herein or in any
written instrument delivered by Seller to Purchaser in connection herewith,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information (including, without limitation,
the Submission Matters) delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER'S AND
SELLER'S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation under
this Contract to purchase the Property is subject to the fulfillment of each of
the following conditions (any or all of which may be waived by Purchaser):
(a) The representations and warranties of Seller contained herein shall
be true, accurate and correct as of the Closing Date;
(b) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract; and
(c) Seller shall have delivered all the documents and other items required
pursuant to Section 8.2(a), and shall have performed, in all material respects,
all other covenants, undertakings and obligations, and complied with all
conditions required by this Contract to be performed or complied with by the
Seller at or prior to the Closing.
7.2 Conditions to Seller's Obligations. Seller's obligation under this
Contract to sell the Property to Purchaser is subject to the fulfillment of each
of the following conditions (all or any of which may be waived by Seller):
(a) the representations and warranties of Purchaser contained herein
shall be true, accurate and correct as of the Closing Date;
(b) Purchaser shall have delivered the funds required hereunder and all the
documents to be executed by Purchaser set forth in Section 8.2(b) and shall have
performed, in all material respects, all other covenants, undertakings and
obligations, and complied with all conditions required by this Contract to be
performed or complied with by Purchaser at or prior to Closing; and
(c) Neither the Clover Leaf Homeowners Association, Inc., nor any other
statutorily recognized homeowners association operating at the Property
(collectively, the "HOA") shall have exercised its right to purchase the
Property in accordance with Florida Statutes, Section 723.07 1 (1), and Seller
shall be in a position to execute at Closing, a Seller's Compliance Affidavit in
accordance with Florida Statutes, Section 723.072. If the HOA exercises its
right to purchase the Property in accordance with Florida Statutes, Section
723.07 1 (1) by signing a purchase contract with the Seller, then this Contract
shall be deemed terminated, the Xxxxxxx Money Deposit shall be returned to
Purchaser, and Seller shall pay to Purchaser, as liquidated damages and to fully
reimburse Purchaser for any costs and expenses incurred by Purchaser in
connection with the negotiation of this Contract or the Purchaser's due
diligence activities with respect to the Property and as reasonable compensation
for any lost opportunity, (i) Twenty-Five Thousand and No/100 Dollars
($25,000.00) within five (5) business days after the HOA executes a purchase
contract with Seller for the purchase of the Property, and (ii) Twenty-Five
Thousand and No/ 100 Dollars ($25,000.00) if and when the HOA closes the
purchase of the Property.
ARTICLE VIII.
CLOSING
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title Company (it
being contemplated that the Closing will occur by the delivery via courier, mail
or other delivery service of Closing documents into escrow with the Title
Company) on November 11, 1998, or at such earlier date and time as Purchaser and
Seller may mutually agree (the "Closing Date").
8.2 Items to be Delivered at the Closina.
(a) Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to the Title Company for recording or delivery to Purchaser, as
applicable, each of the following items:
(i) A standard form ALTA Owner Policy of Title Insurance ("Title Policy")
dated no earlier than the date of the filing of the deed described in Section
8.2(a)(ii) hereof, issued by the Title Company, and insuring Purchaser's title
in the amount of the Purchase Price, subject only to the Permitted Exceptions
(the "Title Policy"). The Title Policy shall contain, to the extent available in
the State of Florida: (a) extended coverage over all general exceptions, (b) an
ALTA 3.0 zoning endorsement, (c) an access endorsement, (d) a survey
endorsement, (e) a legal description equivalency endorsement, (f) a contiguity
endorsement, if applicable, and (g) an endorsement providing coverage over
creditors' fights exceptions.
(ii) A Special Warranty Deed duly executed and acknowledged by Seller in
the form attached hereto as Exhibit B and made a part hereof for all purposes
(with such reasonable changes thereto as may be required by the Title Company in
order to comply with the laws of the State of Florida) sufficient to convey to
Purchaser good and indefeasible title to the Property free and clear of all
liens and encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases (the "Assignment of Leases")
duly executed and acknowledged by Seller in the form attached hereto as Exhibit
C and made a part hereof for all purposes.
(iv) A Blanket Conveyance, Xxxx of Sale and Assignment ("Xxxx of Sale")
duly executed by Seller in the form attached hereto as Exhibit D and made a part
hereof for all purposes.
(v) Letters addressed to the tenants of the Property (the "Notice
Letters") in the form attached hereto as Exhibit F and made a part hereof for
all purposes or in such other form as may be mutually agreed upon by Seller and
Purchaser.
(vi) A Non-Foreign Affidavit in the form attached hereto as Exhibit E and
made a part hereof for all purposes.
(vii) All amounts owing to Purchaser by Seller under Article IX hereof.
(viii) Evidence reasonably satisfactory to Purchaser and the Title Company
that the person or persons executing this Contract and the closing documents on
behalf of Seller have full right, power and authority to do so.
(ix) Rent Roll prepared with respect to the Property in the form normally
prepared by Seller which shall be certified as being true and correct in all
material respects as of a date not more than five (5) business days prior to
Closing.
(x) A recertification of the Seller's representations and warranties as set
forth in Section 6.2 above, as being true and correct in all material respects
as of Closing, but such recertification shall not extend the survival period of
such representations and warranties, beyond that otherwise set forth herein.
(xi) Other items reasonably requested by the Title Company for the sale of
the Property in accordance with this Contract or for administrative requirements
for consummating the Closing.
(b) Purchaser. At the Closing, Purchaser shall deliver to the Title
Company, for recording or delivery to Seller, as applicable, each of the
following items:
(i) Current Funds in an amount equal to the sum of (A) the Purchase Price
and (B) such additional funds as may be necessary to cover Purchaser's share of
the closing costs and prorations hereunder.
(ii) The Assigiurient of Leases, duly executed and acknowledged by
Purchaser.
(iii) The Xxxx of Sale, duly executed by Purchaser.
(iv) Evidence reasonably satisfactory to Seller and the Title Company that
the person or persons executing this Contract and the closing documents on
behalf of Purchaser have full right, power and authority to do so.
(v) The Notice Letters duly executed by Purchaser.
(vi) Other items reasonably requested by the Title Company for the sale of
the Property in accordance with this Contract or for administrative requirements
for consummating the Closing.
8.3 Costs of Closing. Except as otherwise herein provided, any and all
recording fees, documentary and deed stamp taxes, transfer taxes, and any and
all costs relating to the issuance of a standard ALTA title policy (but
excluding the charges for any endorsements thereto, which charges shall be paid
by Purchaser) shall all be paid by Seller. Any and all costs and expenses,
including, without limitation, recording costs, loan fees, attorneys' fees,
documentary stamp taxes, deed taxes, transfer taxes, intangible taxes, mortgage
taxes or other similar taxes, fees or assessments, relating to any financing
obtained by Purchaser for the purchase of the Property, shall be borne and paid
exclusively by Purchaser. Seller and Purchaser shall each pay one-half (Y2) of
any escrow fees charged by the Title Company. All other expenses incurred by
Seller and Purchaser with respect to the Closing, including, but not limited to,
the attorneys' fees and costs and expenses incurred in connection with
negotiating, preparing and closing the transaction contemplated by this
Contract, shall be borne and paid exclusively by the party incurring same,
unless otherwise expressly provided in this Contract.
8.4 Prorations. All normal and customarily proratable items, including,
without limitation, prepaid rents, operating expenses and leasing commissions,
other expenses and fees, and payments relating to any Service Contracts or other
agreements affecting the Property which survive the Closing, shall be prorated
as of the Closing Date, Seller being charged and credited for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date) and
Purchaser being responsible for, and credited or charged, as the case may be,
for all of same attributable to the period on and after the Closing Date;
provided, that pass-on or pass-through charges which are payable under the
Tenant Leases but are unpaid as of the Closing shall be assigned to Purchaser
without any representation, warranty or recourse whatsoever. All unapplied
Deposits under Tenant Leases, if any, shall be transferred by Seller to
Purchaser at the Closing. Any real estate ad valorem, personal property taxes or
similar taxes for the Property, or any installment of assessments payable in
installments which installment is payable in the year of Closing, shall be
prorated to the Closing Date, based upon actual days involved. In connection
with the proration of real property taxes or installments of assessments, such
proration shall be based upon the assessed valuation and tax rate figures for
the year in which the Closing occurs to the extent the same are available;
provide , that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year for the figures which are unavailable for the year of Closing.
The proration shall be final and unadjustable except as provided in the
following paragraph. - The provisions of this Section 8.4 shall survive the
Closing.
If any of the items subject to proration under the foregoing provisions of
this Section 8.4 cannot be prorated at the Closing because of the unavailability
of the information necessary to compute such proration, or if any errors or
omissions in computing prorations at the Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period (the
"Proration Period") from the Closing Date until one hundred twenty (120) days
after the Closing Date; provided, that with respect to ad valorem real and
personal property taxes, the Proration Period shall be from the Closing Date
until the earlier of (i) thirty (30) days after delivery of the respective tax
xxxx, or (ii) December 31, 1998. Neither party hereto shall have the right to
require a recomputation of a Closing proration or a correction of an error or
omission in a Closing proration unless within the Proration Period one of the
parties hereto (i) has obtained the previously unavailable information or has
discovered the error or omission, and (ii) has given notice thereof to the other
party together with a copy of its good faith recomputation of the proration and
copies of all substantiating information used in such recomputation. The failure
of a party to obtain any previously unavailable information or discover an error
or omission with respect to an item subject to proration hereunder and to give
notice thereof as provided above within the Proration Period shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date.
8.5 Possession and Closinia. Possession of the Property shall be delivered
to Purchaser by Seller at the Closing, subject to the Permitted Exceptions and
the rights of the Tenants. Purchaser shall make its own arrangements for the
provision of public utilities to the Property and Seller shall terminate its
contracts with such utility companies that provide services to the Property.
8.6 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any Tenant is
delinquent in the payment of any rent (including, without limitation, pass-on or
pass-through charges which are billed and payable under the Tenant Leases but
are unpaid as of the Closing) under any Tenant Lease (the "Delinquent Rent")
payable by it, any Delinquent Rent received by Purchaser and Seller from such
Tenant after the Closing shall be applied to amounts due and payable by such
Tenant during the following periods in the following order of priority: (A)
first, to the period of time on or after the Closing Date, and (B) second, to
the period of time before the Closing Date. If Delinquent Rent or any portion
thereof received by Seller or Purchaser after the Closing are due and payable to
the other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly paid to
the other party. The provisions of this Section 8.6(a) shall survive the
Closing.
(b) Collection of Delinquent Rent. After the Closing, Seller shall continue
to have the right, in its own name, to demand payment of and to collect
Delinquent Rent owed to Seller by any Tenant, provided, however, such right
shall not include the commencement or continuation of legal actions or
proceedings against any Tenant (but Seller may notify credit reporting agencies
of delinquencies by such Tenants), and the delivery of the Assignment of Leases
[as defined in Section 8.2(a)(iii)] shall not constitute a waiver by Seller of
such right. Subject to the limitations set forth in the preceding sentence,
Purchaser agrees to cooperate with Seller in connection with all efforts by
Seller to collection such Delinquent Rent and to take all steps, whether before
or after the Closing Date, as may be necessary to carry out the intention of the
foregoing, including, without limitation, the delivery to Seller, upon demand,
of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller. The provisions of this SECTION 8.6(B) shall survive
the Closing.
ARTICLE IX.
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any substantial portion of the Property is
condemned or taken by eminent domain or conveyed by deed in lieu thereof, or if
any condemnation proceeding is commenced for all or any substantial portion of
the Property, (i) Seller shall notify Purchaser of such action promptly upon
Seller's learning of such action, and (ii) Purchaser may elect to terminate this
Contract by written notice thereof to the other party within ten (10) days after
Seller notifies Purchaser of the condemnation, taking or deed in lieu or
institution of such condemnation proceeding. If Purchaser does not terminate
this Contract as aforesaid, then both parties shall proceed to close the
transaction contemplated herein pursuant to the terms hereof, in which event
Seller shall deliver to Purchaser at the Closing any proceeds actually received
by Seller attributable to the Property from such condemnation, eminent domain
proceeding or deed in lieu thereof and assign its interest in and to any such
proceeds, and there shall be no reduction in the Purchase Price. In the event
less than a substantial portion of the Property shall be taken or conveyed as
explained in this Section 9. 1 (a), then the parties shall proceed in accordance
with the second sentence in this Section 9. 1 (a).
(b) For the purpose of this Section 9. 1 (a), a "substantial portion" of
the Property shall be deemed to be any portion of the Property with either a
fair market value or replacement cost in an amount equal to or greater than
$350,000.00. The foregoing provision shall survive the Closing.
9.2 Casualty.
(a) In the event that all or any substantial portion of the Property shall
be damaged or destroyed by fire or other casualty prior to Closing, (i) Seller
shall notify Purchaser of such casualty promptly upon Seller's learning of such
casualty, (ii) Purchaser may terminate this Contract by written notice thereof
to Seller within ' ten (10) days after Seller notifies Purchaser of the
casualty. If Purchaser does not terminate this Contract as aforesaid, then both
parties shall proceed to close the transaction contemplated herein pursuant to
the terms hereof, in which event Seller shall deliver to Purchaser at the
Closing any insurance proceeds actually received by Seller attributable to the
Property from such casualty (except for proceeds previously used to repair the
Property to the extent that immediate repairs are reasonably necessary) and
assign to Purchaser all of Seller's right, title and interest in and to any
claims which Seller may have under the insurance policies covering the Property,
and the Purchase Price shall be reduced by the aggregate amount of any
deductibles applicable under such insurance policies with respect to such
casualty loss. In the event less than a substantial portion of the Property
shall be damaged or destroyed by fire or other casualty prior to Closing, then
the parties shall proceed in accordance with the second sentence in this Section
9.2(a).
(b) For the purposes of Section 9.2(a), a "substantial portion" of the
Property shall be deemed to be any portion of the Property with either a fair
market value or replacement cost in an amount equal to or greater than
$350,000.00. The foregoing provision shall survive the Closing.
ARTICLE X.
DEFAULTS AND REMEDIES
10.1 Default by Purchase . If Seller shall not be in default hereunder and
Purchaser refuses or fails to consummate the Closing under this Contract for
reasons other than as expressly set forth in Section 4.4, Section 5.2 or Article
IX hereof or other than due to a failure of a condition precedent to Purchaser's
obligation to close as set forth in Section 7.1 hereof, Seller shall, as its
sole and exclusive remedy, tem-iinate this Contract in which event neither party
shall have any further rights, duties, or obligations hereunder except for
provisions of this Contract which expressly survive the termination hereof, and
Seller shall be entitled to receive or retain the Xxxxxxx Money Deposit as
liquidated damages (Seller and Purchaser hereby acknowledging that the amount of
damages in the event of Purchaser's default is difficult or impossible to
ascertain but that such amount is a fair estimate of such damage).
Notwithstanding anything contained in this Section to the contrary, in the event
of Purchaser's breach of any indemnity, representation or warranty which by the
terms of this Contract survives the Closing or termination of this Contract,
Seller shall have any and all rights and remedies available at law or in equity
by reason of such default; provide , that in no event shall Purchaser be liable
to Seller for any punitive, speculative or consequential damages or damages for
loss of opportunity or lost profit.
10.2 Default by Seller. If Purchaser shall not be in default hereunder and
if Seller refuses or fails to consummate the Closing under this Contract other
than due to a termination permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in Section 7.2 hereof,
Purchaser may, at Purchaser's sole option and as its sole and exclusive
remedies, either (a) terminate this Contract in which event neither party shall
have any further rights, duties or obligations hereunder except for provisions
of this Contract which expressly survive the termination hereof, and Purchaser
shall be entitled to a refund of the Xxxxxxx Money Deposit, or (b) enforce
specific performance of this Contract against Seller and recover the costs of
enforcing such action. In no event shall Seller be liable to Purchaser for any
damages, including, without limitation, any actual, punitive, speculative or
consequential damages or damages for loss of opportunity or lost profit.
Notwithstanding anything contained in this Section to the contrary, in the event
of Seller's breach of any indemnity, representation or warranty which by the
terms of this Contract survives the Closing or termination of this Contract,
Purchaser shall have any and all rights and remedies available at law by reason
of such default; provided, that in no event shall Seller be liable to Purchaser
for any punitive, speculative or consequential damages or damages for loss of
opportunity or loss of profit.
10.3 Attorneys' Fees. If it shall be necessary for either Purchaser or
Seller to employ an attorney to enforce its rights pursuant to this Contract,
the non-prevailing party shall reimburse the prevailing party for its reasonable
attorneys' fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller and Purchaser represent each to the
other that each has had no dealings with any broker, finder or other party
concerning the purchase of the Property. Seller agrees to indemnify Purchaser
and hold Purchaser harmless from any loss, liability, damage, cost or expense
(including, without limitation, reasonable attorneys' fees) arising out of or
paid or incurred by Purchaser by reason of any claim to any broker's, finder's
or other fee in connection with this transaction by any party claiming by,
through or under Seller. Purchaser agrees to indemnify Seller and hold Seller
harmless from any loss, liability, damage, cost or expense (including, without
limitation, reasonable attorneys' fees) arising out of or paid or incurred by
Seller by reason of any claim to any broker's, finder's or other fee in
connection with this transaction by any party claiming by, through or under
Purchaser. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this Article XI shall survive the Closing.
ARTICLE XII.
CERTAIN OBLIGATIONS OF THE PARTIES
12.1 Operation of the Property Prior to the Closing. Between the
Effective Date and the Closing Date, Seller shall:
(a) lease, operate, manage and enter into contracts with respect to the
Property, in the same manner done by Seller prior to the date hereof,
(b) maintain the Property in the condition in which it existed as of the
date of this Contract, normal wear and tear excepted; not commit waste of or on
the Property; operate the Property in a manner consistent with and in compliance
with all applicable laws; and perform its obligations under the Leases, and the
Service Contracts;
(c) advise Purchaser of the commencement of any litigation, condemnation
or other judicial or administrative proceedings affecting the Property of which
Seller has current actual knowledge;
(d) not enter into any contract with respect to or affecting the Property
which would affect or bind Purchaser following the Closing Date, without
Purchaser's prior written consent;
(e) promptly advise Purchaser in writing of any changes in circumstances
which would render the representations and warranties made by Seller herein
false or misleading;
(f) comply with all applicable laws affecting the conveyance of the
Property, including, without limitation, any laws which require the giving of
notice of the transaction contemplated by this Contract to Tenants or any
association of Tenants; and
(g) deliver to Purchaser (i) a revised Rent Roll in the event of any
material changes to the Rent Roll previously delivered, (ii) copies of any
written amendments to any Service Contracts after the Effective Date but prior
to Closing, and (iii) copies of any written notices of any violations of law or
threatened litigation received by Seller after the Effective Date but prior to
Closing.
12.2 Application for Operating Permit. Purchaser shall promptly apply to
the applicable governmental authorities in the State of Florida for a permit to
operate the mobile home park located on the Property, as contemplated by Florida
Statutes Section 513.02. Purchaser shall provide Seller with a copy of its
application promptly upon making the same and will provide Seller with any
official actions with respect thereto within five (5) days after Purchaser's
receipt of notice of the same. In the event that the Purchaser's application to
operate the Property is not approved, and the permit obtained, by the Closing
Date, Purchaser shall nonetheless be obligated to purchase the Property pursuant
hereto, and the Purchaser shall bear any risk associated with not obtaining the
permit to operate the mobile home park located on the Property.
12.3 HOA Notice. As of the Effective Date, Seller has given all notices
required by applicable law to the HOA with respect to the sale of the Property.
The rights of the HOA to purchase the Property in accordance with any such
notice given as provided in Florida Statutes, Section 723.07 1 (1), shall expire
on or before the end of the Inspection Period if not exercised prior to that
date; provided, if the rights of the HOA to purchase the Property have not
expired prior to the end of the Inspection Period, then the Inspection Period
shall be extended until such time as Seller delivers to Purchaser a notice that
the rights of the HOA have expired.
ARTICLE XIII.
MISCELLANEOUS
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission with confirmation of receipt to the party sending same,
if a copy is deposited in the United States Mail as provided in 13. 1 (a) above.
Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
If to Seller: Angeles Park Communities, Ltd.
One Insignia Financial Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: 864/239-1066
Telephone No.: 864/000-0000
With a copy to: Xxxxxxx & XxXxxxxx, P.C.
00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Lorne.0. Xxxxxxx, Esq.
Facsimile No.: 214/265-0615
Telephone No.: 214/000-0000
If to Purchaser: Hometown America, L.L.C.
Three First National Plaza
00 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxx
Facsimile No.: 312/553-2120
Telephone No.: 312/000-0000
With a copy to: Xxxxxxx & Xxxxxx
Three First National Plaza, Suite 4000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
FacsimileNo.: 312/558-7760
TelephoneNo.: 312/000-0000
If to Title
Company: Chicago Title Insurance Company
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx
Facsimile No.: 941/955-2017
Telephone No.: 941/000-0000
13.2 GOVERNING LAW. THIS CONTRACT IS BEING EXECUTED AND DELIVERED, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF FLORIDA, AND THE LAWS OF SUCH STATE
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS
CONTRACT.
13.3 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements (including, without
limitation, the Access Agreement) and understandings, if any, relating to the
transaction described herein, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
13.4 Parties Bound. Subject to the provisions of Section 13.5 hereof, this
Contract shall be binding upon and inure to the benefit of Seller and Purchaser,
and their respective heirs, personal representatives, successors and assigns.
13.5 Assignment. Except as provided in this Section 13.5, this Contract
may not be assigned in whole or in part by Purchaser without the prior written
consent of Seller. Any assignment of this Contract by Purchaser other than as
expressly permitted in this Section 13.5 shall, at Seller's option, be null and
void and of no effect. In the event Seller consents to an assignment of this
Contract by Purchaser, or if an assignment is made without Seller's consent,
Purchaser shall not be released from any liability or obligations hereunder.
Notwithstanding anything contained in this Contract, Purchaser may assign all of
its right, title and interest in this Contract to any entity owned by or under
common control with Purchaser. Any assignment permitted hereunder shall be
effected by a written assignment and assumption agreement (reasonably
satisfactory to Seller) between Purchaser and its assignee. Upon delivery of an
executed original of such assignment and assumption agreement to Seller, the
assignee shall become the "Purchaser" for all purposes of this Contract.
13.6 Headings. Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
construing the terms of this Contract.
13.7 Survival. Except as otherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements contained
in this Contract shall survive the Closing of this Contract and the delivery of
the Special Warranty Deed by Seller to Purchaser.
13.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
13.9 Exhibits. All references to "Exhibits" contained herein are
references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
13.10 Time of Essence. It is expressly agreed by the parties hereto that
time is of the essence with respect to this Contract and Closing hereunder.
13.11 Multiple Counterparts. To facilitate execution, this Contract may be
executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature or acknowledgment of, or on behalf of, each
party, or that the signature of all persons required to bind any party, or the
acknowledgment of such party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in making
proof of this Contract to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, and the respective
acknowledgments of, each of the parties hereto. Any signature or acknowledgment
page to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures or acknowledgments thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
13.12 Risk of Loss. Risk of loss or damage to the Property, or any part
thereof, by fire or any other casualty from the date this Contract is fully
executed up to the time of delivering the Special Warranty Deed transferring
title to the Property to the Purchaser will be on the Seller and, thereafter,
will be on the Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date" shall mean
for all purposes in this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser and
Seller with all changes, if any, to the printed portion of this Contract
initialed by Purchaser and Seller.
13.14 Business Days. All references to "business days" contained herein
are references to normal working business days, i.e., Monday through Friday of
each calendar week, exclusive of federal and national bank holidays. In the
event that any event hereunder is to occur, or a time period is to expire, on a
date that is not a business day, such event shall occur, or such time period
shall expire, on the next succeeding business day.
13.15 No Recordation of Contract. In no event shall this Contract or any
memorandum hereof be recorded in the public records of the place in which the
Property is situated, and any such recordation or attempted recordation shall
constitute a breach of this Contract by the party responsible for such
recordation or attempted recordation.
IN WITNESS WHEREOF, the undersigned have executed this Contract effective
as of the Effective Date.
SELLER:
ANGELES PARK COMMUNITIES, LTD., a California limited partnership
By: Angeles Realty Corporation of California,
a California corporation
By:
Its:
Dated:
PURCHASER:
HOMETOWN AMERICA, L.L.C., a Delaware limited liability company
By:
Its:
Dated:
RECEIPT OF XXXXXXX MONEY DEPOSIT AND AGREEMENT OF TITLE COMPANY
Chicago Title Insurance Company (the "Title Company"), located at 0000 Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, hereby acknowledges the receipt of one (1)
fully signed and executed copy of this Contract.
Upon receipt, the Title Company agrees to hold the Xxxxxxx Money Deposit in
escrow as escrow agent for the benefit of Seller and Purchaser and to dispose of
the Xxxxxxx Money Deposit in strict accordance with the terms and provisions of
this Contract.
CHICAGO TITLE INSURANCE COMPANY
By: Name: Title:
Dated:
