Exhibit 10.2
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into by
and between Floral Park Cemetery Association, Inc., an Indiana corporation (the
"Purchaser"), and Windsor Park Properties 3, a California limited partnership
(the "Seller").
WHEREAS, Seller, under a separate but related agreement, is selling to
Purchaser, certain real estate located in Xxxxxx County, Indianapolis, Indiana
commonly known as 0000 Xxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx (the "Real Estate");
and
WHEREAS, The principal business activity operated on the Real Estate is a
mobile home park called Little Eagle Mobile Home Park (the "Business")
containing certain items of personal property; and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
substantially all of the assets owned by Seller that are used in the Business,
all upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals and the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
Sale of Assets and Assumption of Liabilities
1.1. Purchased Assets and Excluded Assets.
(a) On the Closing Date (as hereinafter defined), Seller agrees to
sell, assign, transfer and deliver to Purchaser, and Purchaser agrees to
purchase, acquire and accept from Seller, all assets, properties and rights
of every kind and description, real, personal and mixed, tangible and
intangible, and wherever situated, owned by Seller and used in the Business
on the Closing Date including, but not limited to, the assets described in
paragraphs (i) through (vii) below used by Seller in the conduct of the
Business, except for the Excluded Assets (as hereinafter defined). The
assets to be purchased and sold hereunder shall be referred to in this
Agreement as the "Purchased Assets" and shall be purchased by Purchaser
free and clear of any and all mortgages, liens, security interests,
pledges, charges, claims, restrictions. encumbrances, options and rights of
third parties. The assets comprising the Purchased Assets are as follows:
(i) The name "Little Eagle Mobile Home Park" and all goodwill
associated therewith.
(ii) The "land contracts" for the sale of nine (9) mobile home
units listed on Exhibit A and Seller's complete interest in the
underlying mobile home units (the "Mobile Homes").
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(iii) All other assets used by Seller in the Business and located
on the Real Estate, except for the Excluded Assets.
(b) For purposes of this Agreement, the term "Excluded Assets" shall
mean the following:
(i) All accounts receivable arising from services performed or
products sold by Seller in connection with the Business on or prior to
the Closing Date except for the rent which will be prorated as set
forth in the agreement for the contract of the Real Estate (the "Real
Estate Contract") (the "Accounts Receivable").
(ii) The corporate minute books and all other books, records and
documents relating to the corporate organization of Seller.
(iii) All cash, cash equivalents, working capital, investments,
securities or financial instruments of any nature, whether on hand or
on deposit or otherwise related to the Business on or prior to the
Closing Date.
(iv) All tax returns, financial statements, accounting records,
employment records and tax refunds related to the Business on or prior
to the Closing Date.
(v) The cash surrender value of all life insurance policies owned
by Seller.
1.2. Assumption of Liabilities. Purchaser does not assume any of the
liabilities of Seller in any respect. By way of illustration, but not
limitation, all debts, obligations, taxes and other liabilities of any character
or description, whether accrued, unaccrued, matured, unmatured, known, unknown,
contingent or otherwise (including, but not limited to, all bank debt and
accounts payable), of Seller that arise or arose out of the ownership of the
Purchased Assets and/or the operation of the Business on or prior to the Closing
Date (collectively, the "Liabilities") shall be retained by Seller and shall not
be assumed by Purchaser. Seller agrees to perform, pay and discharge promptly
the Liabilities when due and to indemnify, defend and hold harmless Purchaser
with respect to the Liabilities, including any costs, expenses or attorneys fees
incurred by Purchaser as a result of being made a party, or otherwise protecting
itself from any assertion of liability against it. All utilities, rents and
similar items shall be prorated between Purchaser and Seller as of the Closing
Date in accordance with the terms of the Real Estate Contract.
1.3. Closing. Upon the terms and subject to the conditions precedent set
forth in this Agreement, the closing of the transactions contemplated hereby
(the "Closing") shall take place on a date and at a time mutually agreed upon by
Purchaser and Seller which is within thirty (30) days following satisfaction of
the conditions set forth in Article VI of this Agreement and in the Real Estate
Contract (the "Closing Date"). Unless terminated as provided herein, the Closing
shall occur contemporaneous with the closing of the transaction contemplated by
the Real Estate Contract. In the event of the termination of the Real Estate
Contract, this Agreement shall automatically terminate without action by either
party. On the Closing Date, Purchaser shall pay the Purchase Price (as defined
in Section 2.1 hereof), in accordance with the terms of Section 2.1 hereof, to
Seller, and Seller shall deliver to Purchaser a Xxxx of Sale in the form
reasonably acceptable to Purchaser, along with possession of the Purchased
Assets.
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ARTICLE II
Purchase Price
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2.1. Purchase Price; Method of Payment. The purchase price for the
Purchased Assets shall be Fifty Thousand and no/100 Dollars ($50,000.00) (the
"Purchase Price"). The Purchase Price shall be paid by Purchaser to Seller in
immediately available funds at Closing.
2.2. Allocation of Purchase Price. The Purchase Price shall be allocated as
set forth in Exhibit A hereto. The parties agree to report the results of this
transaction for federal, state and local tax purposes in accordance with the
allocation set forth in Exhibit A.
ARTICLE III
Representations and Warranties of Seller
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Seller hereby represents and warrants to Purchaser as follows:
3.1. Authority; Enforceability. This Agreement has been duly approved,
executed and delivered by Seller and constitutes a valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
3.2. Warranty of Title; Condition of Purchased Assets. As of the Closing
Date, Seller has and Purchaser will acquire good and marketable title to all of
the Purchased Assets, free and clear of all mortgages, liens, claims, pledges,
security interests, charges, restrictions, encumbrances, options and rights of
third parties. The Purchased Assets which are machinery, equipment and Mobile
Homes are being purchased by Purchaser in there "as is" "where is" condition and
Seller makes no representation regarding their operating condition. The
Purchased Assets which are inventory, supplies, furniture and fixtures are being
purchased by Purchaser in there "as is" "where is" condition and Seller makes no
representation regarding their condition, or as for the inventory, their
saleable quality.
3.3. No Violations. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby (a) conflicts with,
violates or constitutes a default under or breach of (i) Seller's Certificate of
Limited Partnership or Limited Partnership Agreement, (ii) any law, statute,
rule, regulation, ordinance or other government requirement, or (iii) any
promissory note, mortgage, bond, instrument, lease, contract, agreement,
understanding or arrangement to which Seller is a party or by which Seller or
the Purchased Assets are subject or bound; or (b) results or will result in the
creation of or gives any person, corporation or entity the right to create any
lien, charge, claim, security interest, option or other adverse right or claim
upon any of the Purchased Assets.
3.4. Law. To the best of Seller's knowledge, without a duty of inquiry,
there are no violations of any laws, statutes, rules, regulations, codes,
ordinances, orders or requirements by or affecting the Seller, the Business or
the Purchased Assets.
3.5. Other Contracts. Seller has not entered into any contract, agreement,
understanding, commitment or option, other than this Agreement, granting to any
party the right to purchase the stock of Seller, the Business or any of the
Purchased Assets.
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3.6. Taxes. Seller has (a) duly filed all tax returns of every type
required to be filed by it for all periods ended on or prior to the Closing
Date, and (b) paid all taxes, interest, penalties, assessments and other
governmental charges due or claimed to be due upon the Business, the Purchased
Assets, Seller or any of its income and operations for all periods ended on or
prior to the Closing Date. To the best of Seller's knowledge, without a duty of
inquiry Seller is not currently under audit by the Internal Revenue Service or
any other State or local taxing authority.
3.7. Litigation; Judgments. There are no claims, actions, suits,
proceedings, arbitrations, mediations, litigation or investigations pending or,
to the best of Seller's knowledge, threatened in any court or before any
governmental agency or authority, arbitration panel, mediator or otherwise (nor
does Seller have any knowledge of a basis for any claim, action, suit,
proceeding, litigation, arbitration, mediation or investigation) against, by or
affecting Seller, the Business or the Purchased Assets. Seller is not subject to
or bound by any outstanding judgment, order, directive, writ, injunction, decree
or requirement of any court, arbitration panel or government agency or authority
with respect to the Business or the Purchased Assets.
3.8. Employee Matters. Relative to the Business:
(a) Seller is not a party to or bound by any employment agreements,
and all employees of Seller are employed on an employee-at-will basis.
(b) All obligations and liabilities of Seller relating to its current
and former employees (including, without limitation, all salary,
compensation, taxes, sick leave and vacation) have been paid in full
through the Closing Date or will be paid as they come due.
(c) Seller does not sponsor, maintain, participate in or contribute to
any employee pension benefit plan, as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended, or any other
pension, retirement, profit-sharing, bonus or deferred compensation plan,
nor has Seller done so prior to the Closing.
(d) Seller understands, acknowledges and agrees that, by virtue of the
consummation of the transactions contemplated by this Agreement, Purchaser
does not (i) assume any liability or obligation of Seller to any of
Seller's current or former employees, or (ii) commit or undertake to
continue Seller's existing group health and hospitalization insurance plan,
if any.
3.9. Absence of Undisclosed Liabilities. There are no contracts,
agreements, leases, understandings, arrangements, liabilities, debts or
obligations of Seller of any nature (whether absolute, contingent, matured,
unmatured or otherwise) relating to or affecting the Business or the Purchased
Assets that will be binding or in force or effect after the Closing, except the
leases disclosed in the Real Estate Contract.
3. 10. No Third Party Consents. To the best of Seller's knowledge, without
a duty of inquiry, no consent, approval, authorization or waiver of any person,
corporation or other entity, any other third party or any governmental agency or
authority is required for the execution, delivery and performance of this
Agreement by Seller. This Agreement has been duly approved, executed and
delivered by Seller and constitutes a valid and legally binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
other laws of general applicability relating to or affecting creditors rights
and the general principles of equity. Seller is duly organized with full power
and authority to enter into and consummate the transaction contemplated herein,
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the execution of this Agreement and the sale contemplated hereby have been duly
and properly authorized and/or ratified and confirmed by appropriate action of
Seller. Seller has taken all requisite action to consummate this Agreement and
the sale contemplated hereby.
ARTICLE IV
Representations and Warranties of Purchaser
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Purchaser hereby represents and warrants to Seller as follows:
4.1. Authority; Enforceability. This Agreement has been duly approved,
executed and delivered by Purchaser and constitutes a valid and legally binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
ARTICLE V
Covenants
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5.1. Communications with Customers. On or before the Closing Date, Seller
shall, at its expense, send a letter to all customers of the Business notifying
them of Seller's sale of the Purchased Assets and recommending that such
customers continue their relationship with Purchaser. The content of any such
letter shall be subject to the prior approval by Purchaser and Seller.
5.2. Further Assurances. Each party hereto respectively shall use all
reasonable efforts and give all notices required to consummate the transactions
contemplated hereby and shall otherwise take, or cause to be taken, all actions
and do, or cause to be done, all other things necessary, proper or appropriate
to consummate and, thereafter' make effective the transactions contemplated by
this Agreement and the Exhibits hereto.
5.4. Telephone Number. Purchaser shall have the right to utilize Seller's
current telephone number indefinitely.
5.5. Indemnification Against Liabilities. In the event that there is any
inaccuracy in or breach of Seller's representations and warranties contained in
this Agreement or that any third party asserts any claim against Purchaser
relating in any way to the Purchased Assets or the conduct of the Business on or
prior to the Closing or to any Liability, then Seller shall indemnify, defend
and hold harmless Purchaser, and its directors, officers, agents, successors and
assigns, from and against all actions, lawsuits, proceedings, judgments,
liabilities, damages, losses, costs and expenses (including, but not limited to,
reasonable attorneys' fees and other costs of defense) incurred as a result of
such inaccuracy, breach or claim. In the event that there is any inaccuracy in
or breach of any of Purchaser's representations and warranties contained in this
Agreement or that any third party asserts any claim against Seller relating in
any way to the conduct of the Business after the Closing, then Purchaser shall
indemnify, defend and hold harmless Seller, and its directors, officers, agents,
successors and assigns, from and against all actions, lawsuits, proceedings,
judgments, liabilities, damages, losses, costs and expenses (including, but not
limited to, reasonable attorneys' fees and other costs of defense) incurred as a
result of such inaccuracy, breach or claim.
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ARTICLE VI
Conditions to Closing
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Purchaser's obligations hereunder shall be subject to the condition that as
of the Closing Date there is no breach of any of Seller's representations or
warranties hereunder in Paragraph 12; and to the satisfaction of the following
additional conditions precedent:
a. There shall have been no material casualty loss with respect to any
of the Purchased Assets;
b. Purchaser shall have been given true and correct copies of each of
the "land contracts" for the sale of the nine (9) mobile home units
referenced on Exhibit A, and shall, in its sole discretion, be satisfied
with the terms and conditions therein;
c. Seller shall furnish evidence, reasonably satisfactory to
Purchaser, that each of the purchasers of the nine (9) mobile home units
referenced on Exhibit A is current with respect to its payments under the
terms and conditions of the respective "land contracts" as of the date of
closing; and
d. There shall have been no material adverse changes in the Business,
or any aspect thereof; and
e. The parties must have satisfied all of the conditions to closing
under the terms of the Real Estate Contract and be ready to close on the
purchase of the Real Estate.
ARTICLE VII
Termination
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Purchaser may terminate this Agreement upon any of the breach of Seller of
any provision of this Agreement or upon the occurrence of any of the following:
a. The failure, within a reasonable time period, of Seller to comply
with all of the conditions to closing reference in Article VI of this
Agreement;
b. Any material change in the truthfulness of any of Seller's
representations or warranties contained herein; and
c. Any event of default or termination under the terms of the
Real Estate Contract, including Paragraph 14, Default and Termination,
therein.
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ARTICLE VIII
Miscellaneous and General
8.1. Payment of Expenses. Each party hereto shall pay its own expenses
incident to this Agreement and transactions contemplated hereby.
8.2. Survival. The representations and warranties of the parties contained
in this Agreement shall survive the Closing for a period of one (1) year
following the Closing Date. No due diligence review or other investigation or
examination by Purchaser of the Purchased Assets, Seller or the Business shall
affect or limit the representations and warranties of Seller contained in this
Agreement, and Purchaser shall be entitled to rely upon such representations and
warranties notwithstanding any such due diligence review, investigation or
examination.
8.3. Modification or Amendment. The parties hereto may modify or amend this
Agreement at any time only by written agreement duly executed and delivered by
each of the parties hereto.
8.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
8.5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
8.6. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid as follows:
(a) If to Seller, to:
Windsor Park Properties 3
C/o Windsor Corporation
Attention: Xxxxx Xxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a Copy to:
Xxxxxxx & Xxxxx, L.L.P.
Attn: Xxxxx X. Xxxxxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(b) If to Purchaser, to:
Floral Park Cemetery Association, Inc.
Attention: Xxxxx Xxxxxxxx
00 Xxxxxxx Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
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With a Copy to:
XXXXXXX XXXXXXX XXXXX & XXXXXXX
Attention: Xxxx X. Xxxxx
2700 Market Tower
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice and delivered as provided herein.
8.7. Entire Agreement; Assignment. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, between the parties hereto with respect to the subject matter hereof, and
shall not be assignable by either party hereto without the prior written consent
of the other party.
8.8. Captions. The Article, Section and paragraph captions contained herein
are for convenience of reference only, do not constitute a part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
8.9. Construction of Agreement. This Agreement constitutes a negotiated
agreement between the parties hereto and the fact that one party or the other
shall have drafted a particular provision shall not be considered in the
construction of any provision.
8.10. Severability. If any provision or portion of this Agreement shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such provision or portion shall be deemed to
be severed or, preferably, limited, but only to the extent required to render
the remaining provisions and portions of this Agreement enforceable. This
Agreement as thus amended shall be enforced to give effect to the intention of
the parties insofar as that is possible.
8.11. Certain References. Whenever in this Agreement a singular word is
used, it shall also include the plural wherever required by the context and vice
versa. All references in this Agreement to the neuter, masculine or feminine
shall mean or apply to the appropriate gender wherever required by the context
of this Agreement or to properly identify the appropriate persons or parties.
8.12. Taxes. All federal, state, local and other taxes, charges and
assessments (including, without limitation, interest, fines and penalties)
resulting from, imposed by virtue of or relating to the sale of the Purchased
Assets contemplated by this Agreement shall be paid by Seller.
(the remainder of this page intentionally left blank)
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Asset Purchase
Agreement as of the respective dates set forth below.
PURCHASER:
FLORAL PARK CEMETERY ASSOCIATION, INC.
By: /S/ XXXXX XXXXXXXX
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Date: January 21, 1999
SELLER:
WINDSOR PARK PROPERTIES 3
By: Windsor Corp., General Partner
By: /S/ XXXXX XXXXX
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Xxxxx Xxxxx, ___________________
Date: January 15, 1999
By: Xxxxxx X. Xxxxx
Printed:
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Title: President
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Exhibit A
Listing and Valuation of Assets
Nine (9) Mobile Home Units listed on the attached Exhibit A-1 $40,000
The name "Little Eagle Mobile Home Park and all other Goodwill 10,000
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Totals $50,000
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Exhibit A-1
Land Contract Sales of Mobile Home Units
All Information is per Seller:
Projected
Outstanding
Balance
Monthly per
Original Term of Payment Seller
Contract Date of pmts Interest (per as of
Unit Lot# Year Manufacturer Size Price Sale (yrs) Rate Seller) Closing
---- ---- ---- ----------------- ---- --------- -------- --------- -------- ------- ----------
1 10 1972 Highland 12x54 6000 2/20/98 4 12.00% $131.49 $4,866.45
2 21 1970 Landola 12x60 6000 5/8/98 4 12.00% 131.44 5,188.10
3 23 1977 SVN 14x70 3000 3/11/98 2 12.00% 131.81 1,836.39
4 51 1968 Landola 12x52 6000 6/30/98 4 12.00% 144.84 5,293.07
5 59 1989 Redibuilt 12x38 2000 9/1/98 1 12.00% 151.05 1,359.67
6 65 1970 Landola 12x48 6000 12/19/9 4 12.00% 142.00 4,648.68
7 77 1982 ELO 14x55 3500 3/27/98 25 12.00% 116.24 2,447.28
8 86 1973 Highland 12x54 6500 4/28/98 4 12.00% 142.51 5,505.34
9 90 1966 Donabella 12x60 6000 5/22/98 4 12.00% 131.44 5,293.07
45000 $1,222.82 $36,438.05
