REAL PROPERTY PURCHASE AGREEMENT AND DEPOSIT RECEIPT
THIS IS INTENDED TO BE A LEGALLY BINDING AGREEMENT. READ IT CAREFULLY.
1. PARTIES:
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This Real Property Purchase Agreement and Deposit Receipt ("Agreement") is made
between Chateau Communities and/or its assigns (as allowed pursuant to this
Agreement) ("Buyer") and Rio Grande Investors, LLC, a New Mexico LLC, Xxxx
Xxxxx Xxxxxxxxxx, as Trustee of the Xxxx Xxxxx Xxxxxxxxxx Trust dtd 4/13/90,
Xxxxxxx X. Xxxxx, as Trustee of the Xxxxxxx X. Xxxxx Trust dtd 10/10/90, Xxxxxx
X. Xxxxx, as Trustee of the Xxxxxx X. Xxxxx Trust dtd 3/14/90 and Xxxx X.
Xxxxxxx, as Trustee of the Xxxxxxx Family 1995 Revocable Trust (individually and
collectively referred to herein as "Seller").
2. DEPOSIT RECEIPT:
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Buyer shall deposit a check in the amount of One Hundred Thousand ($100,000)
Dollars payable to the National Office of Lawyer's Title ("Title Company") as a
deposit ("Deposit") for the purchase of those certain Properties including, to
the extent owned by Seller, all land, improvements, buildings, easements, air,
mineral and riparian rights and all tenements, herediments, privileges and
appurtenances thereto, all personal property, fixtures, tradenames, licenses,
permits, contracts, all Seller owned homes and all mortgage notes receivable
thereon and any other asset located on the Property (as hereinafter defined)
necessary for the operation of such properties as mobile home communities
(individually referred to herein as the "Property" and collectively as the
"Properties") located in the City of Albuquerque, County of Bernalillo, State of
New Mexico, and more particularly described as follows with legal descriptions
attached hereto as Exhibit A:
Location: 0000 Xxxxx Xxxx XX 00000 0xx Xxxxxx XX
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
Consisting of: 163 Spaces 180 Spaces
Commonly known as: Aztec Village MHC The Village Park MHC
The parties hereto agree that May 10, 1999 shall be the effective date (the
"Effective Date") of this Agreement.
3. TERMS OF SALE:
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A. PURCHASE PRICE
The purchase price of the Properties shall be: $11,250,000
B. CASH DOWN PAYMENT
The cash down payment, including the Deposit shall be: $ 4,440,000
C. EXISTING FINANCING
Buyer agrees to take title either subject to or by assuming deeds
of trust totaling approximately: $ 6,810,000
4. CLOSING DATE:
=================
Within two (2) business days after the date this Agreement is executed by all
parties hereto, escrow shall be opened by Buyer with Title Company. Buyer and
Seller agree that prior to the expiration of the Investigation Period (as
hereinafter defined) the parties shall execute escrow instructions wherein they
shall agree that on or before the date that Buyer closes on the Longview
Property (as hereinafter defined) the parties hereto shall execute and deliver
into escrow with the Title Company all appropriate documents relating to this
Agreement, including without limitation the Deeds, with the only provisions for
the release of those documents to be (i) payment by Buyer of the Purchase Price
as adjusted pursuant to this Agreement , (ii) the satisfaction of all other
conditions of Seller's performance, as set forth in this Agreement; and (iii)
the execution and delivery by Buyer of all appropriate documents, also as set
forth herein (the "Escrow Delivery Date"). The Closing shall take place ninety
(90) days after the expiration of the Investigation Period (as hereinafter
defined) (the "Closing Date") or sooner upon the mutual agreement of the
parties. The deed(s) transferring title to the Properties shall be recorded by
the Title Company as of the Closing Date or as soon thereafter as possible. The
Closing shall be held at such place as shall be mutually agreed upon by the
parties, but in the absence of an agreement to the contrary, shall occur at the
offices of the Title Company.
5. CLOSING COSTS AND CLOSING DELIVERIES:
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A. CLOSING COSTS are to be paid as follows:
I. Escrow Fees: Seller/Buyer 50/50
II. Standard Owners Title Policy: Seller
Other than the Title Policy, a portion of the cost of the Surveys (as
hereinafter described) and certain other costs as indicated in this Agreement,
Buyer shall pay all costs of closing and costs of investigating the Properties,
including, without limitation, all costs associated with all environmental and
termite inspections, and engineering reports. Any additional escrow costs or
fees shall be paid by Buyer. In the event Seller or Buyer completes a tax-
deferred exchange and additional closing costs and transfer taxes are incurred,
the beneficiary of the exchange shall pay all additional costs arising out of
the tax deferred exchange.
B. ESCROW DELIVERIES
I. On the Escrow Delivery Date, Seller shall execute and deliver the
following documents into escrow with the Title Company:
a. Special warranty deeds (the "Deeds") conveying title to the
Properties, which title is free and clear of all liens, claims and
encumbrances, other than Permitted Encumbrances, and otherwise in a
condition to enable the Title Company to issue owner's title insurance
policies with extended coverage, subject only to the Permitted Encumbrances
and in the form described in Section 6(A)1 hereof. For purposes of this
Agreement, "Permitted Encumbrances" shall be all liens, claims,
encumbrances, easements or other restrictions on title disclosed in the
Commitments (as hereinafter defined) and not objected to by Buyer or which
have otherwise been accepted by Buyer. Seller shall be responsible for the
cost of the Commitments and Title Policies (as hereinafter defined) for the
Properties, including survey endorsements.
b. An affidavit stating that Seller is not a "foreign person" within
the meaning of IRC Section 1445(f)(3);
c. An itemized list and the appropriate affidavits stating that
there are no claims which may give rise to mechanics' liens on the
Properties, sufficient to permit the Title Company to issue the Title
Policies with extended coverage;
d. A letter to all tenants introducing Buyer as the new owner of the
Properties and directing them to make future payments of rent to Buyer at a
place designated by Buyer;
e. An assignment of any and all condemnation awards and any unpaid
condemnation award for damages relating to the Properties;
f. An assignment of, and the original copies of, if in possession of
Seller, any and all leases or other occupancy agreements to which the
Properties or any part thereof are subject and all rents to become due
thereunder subsequent to the Closing and any security deposits made
pursuant thereto; provided, however, that Buyer shall assume no obligation
for claims of tenants for damages to persons or properties arising prior to
the Closing but shall assume such obligation for claims of tenants arising
from any acts or omissions occurring after the Closing;
g. An assignment to Buyer of any and all service, maintenance or
other contracts or agreements, to the extent assignable, relating to the
Properties which Buyer has elected to assume, and all claims, warranties,
indemnifications, and guarantees of performance relating to the Properties
and other rights, if any, which the Seller may have against suppliers,
laborers, materialmen, contractors or subcontractors, to the extent that
the same are assignable by Seller and to the extent Seller has no present
intent at the time of the Closing in pursing any claim related to monies
paid by Seller to cure a default (and such default has been cured) in
connection with any of the foregoing;
h. An assignment, and possession, of all licenses, permits,
franchises and certificates in possession of Seller issued by any state,
federal or local municipal governmental authority, relating to the use,
maintenance or operation of the Properties to the extent such licenses,
permits and franchises are transferable including, without limitation, all
licenses and permits applicable to the water and sewage system and
equipment, if any;
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i. An assignment of all tradename(s), if any, used by Seller in
connection with the operation of the Properties as manufactured housing
communities.
j. An itemized list of all tangible personal property, owned by
Seller and used in connection with the operation and management of the
Properties and execute and deliver any and all Bills of Sale or other
conveyance documents necessary to transfer to Buyer all personal property
relating to the operation and management of the Properties including the
execution and delivery of all titles for any mobile home units or any
vehicles which are being transferred to Buyer in connection herewith,
properly endorsed by Seller with all liens released. Such titles shall be
free and clear of all liens and encumbrances and Seller shall be
responsible for all sales tax related to the transfer of same to Buyer;
k. Execute and deliver any other documents as are reasonably
necessary to evidence the transaction contemplated hereby. All documents to
be delivered hereunder shall be in form and content acceptable to both
Buyer and Seller.
II. At the Closing, Seller shall take the following actions:
a. Pay title insurance premiums (including the cost of all
reasonable endorsements to the Title Policy), and any other costs which are
incurred by Seller incident to Seller's obligations pursuant to this
Agreement;
b. Cause the termination of any management agreements affecting the
Properties;
c. Deliver a certificate certifying that to the best of Seller's
actual knowledge all representations and warranties made by Seller are true
and correct on the date of the Closing (or disclosing any materially
adverse change in such representations and warranties) and that all
conditions to Closing have occurred, been waived or otherwise been
satisfied;
d. Cause the Title Company to deliver the Commitments, marked up by
hand and updated by the Title Company as of the Closing Date, such that the
marked up Commitments are effective as the Title Policies, pending the
actual issuance of the Title Policies.
e. Execute and deliver a closing statement (the "Closing Statement")
setting forth the adjustments and prorations provided for hereunder;
f. Execute and deliver Rent Rolls for the Properties updated and
certified by Seller as of the Closing Date;
g. Pay all transfer and recording taxes and recording fees including
without limitation city, county and state transfer taxes, if any, related
to the transfer of the Properties from Seller to Buyer including, without
limitation any sales tax related to the transfer of any mobile homes from
Seller to Buyer;
III. At the Closing, Buyer shall deliver the following:
a. The Purchase Price, as adjusted per this Agreement;
b. An executed Closing Statement;
c. A certified statement updating and restating as of the Closing
Date, that to Buyer's actual knowledge, each of the representations and
warranties made by Buyer in accordance with the provisions hereof are true
and correct on the Closing Date (or disclosing any materially adverse
change in such representations and warranties) and that all conditions to
Closing have occurred, been waived or otherwise been satisfied;
d. Pay its share of any costs which are Buyer's pursuant to this
Agreement; and
e. Deliver any other documents as are reasonably necessary to
evidence the transaction contemplated hereby.
6. DOCUMENTS AND INSPECTION CONTINGENCIES:
===========================================
A. DOCUMENTS. With the exception of the Surveys (as hereinafter defined),
which shall be delivered by Seller to Buyer within twenty-five (25) days of the
Effective Date, within ten (10) days of the Effective Date, Seller shall
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provide Buyer, the below listed documents ("Documents"), to the extent same are
available. Buyer shall acknowledge in writing receipt of each Document. If these
Documents are provided to Buyer late and accepted by Buyer, then this Agreement
shall continue in full force and effect. The Documents are:
1. A commitment from the Title Company for a policy of title insurance with
extended coverage for each of the Properties (the "Commitments") in the
amount of the Purchase Price (allocated appropriately) (or such lesser
amount as Buyer may elect) and legible copies of all documents listed as
exceptions in the respective Schedule B's attached thereto with a Survey
Endorsement. Seller shall be responsible for the cost of the Commitments
and Title Policies for the Properties, including the survey endorsement.
2. ALTA surveys (the "Surveys") for each of the Properties prepared by a land
surveyor licensed under the laws of the State of New Mexico and certified
to Buyer and the Title Company. The Surveys shall show the location of all
improvements, structures, boundaries, easements, right-of-ways,
restrictions, covenants and encroachments and be sufficient to allow the
Title Company to provide extended coverage on the Commitments and the Title
Policies. The Surveys shall also certify as to the total acreage contained
within each Property. Notwithstanding anything stated herein to the
contrary, Seller hereby agrees to pay all costs and expenses incurred by
Buyer in obtaining the above described Survey in an amount not to exceed
Two Thousand and 00/100 ($2,000.00) Dollars per Property;
3. Income and operating expenses of the Properties for years 1997, 1998 and
YTD 1999;
4. Current rent rolls, including unit number, rent, rental incentives,
deposit, paid status and the date of the last rent increase;
5. All rental agreements, leases, service contracts, and all other written
contracts or agreements in Seller's possession affecting the Properties
will be made available for Buyer's review on-site;
6. Inventory of the personal property to be conveyed at the Closing;
7. Any existing copies of Phase I Environmental Reports, Surveys or any other
reports, plans or specifications relating in any way to the Properties;
8. Copies of all notes, mortgages, security agreements, other agreements or
documents relating to the indebtedness being assumed by Buyer pursuant to
Section 3C;
9. A list of any capital expenditures made at the Properties in excess of
$500.00 since 1996;
10. Any evidence in Seller's possession that the water and sewage disposal
systems and facilities serving the Properties are fully operative, meet all
governmental requirements and have been licensed and approved by all
governmental authorities and a schedule of any unpaid water, sewage or
utility tap fee or access fees, or any other special assessments and copies
of all utility franchise agreements, if any;
11. A copy of any Community prospectus for each of the Properties, if any since
the initial development of the Properties;
12. All permits in Seller's possession, for any aspect of the operations of the
Properties, including, without limitation, swimming pools;
13. Community rules and regulations for the Properties; and
14. Certified Articles of Organization and the most recent version of the
Operating Agreement for Rio Grande Investors, LLC evidencing authority of
signator to bind the LLC and consummate the transactions contemplated
herein, Certificates of Trusts for each of the individual Seller's
evidencing authority of the Trustee to bind the individuals trust.
B. INVESTIGATION PERIOD
During the period ending on the later of (i) thirty (30) days from the Effective
Date or (ii) ten (10) days following receipt by Buyer of the last of the items
set forth in Section 6(A) hereof (the "Investigation Period"), Buyer shall, at
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Buyer's sole cost and expense, make all inspections, studies or investigations
desired by Buyer with respect to the Properties, including but not limited to
(i) examination of all physical aspects of the Properties, including obtaining
soils and other investigations and reports concerning the physical condition of
the Properties, (ii) investigating all zoning, code and all governmental
requirements concerning the Properties, (iii) obtaining any desired
environmental assessments and reports concerning the Properties, (iv)
investigating the availability to the Properties of all utilities including
water, sewer, gas, cable, electricity and telephone, (v) determining the
feasibility of Buyer's intended use of the Properties, and (vi) reviewing copies
of any pertinent reports and other documents concerning the Properties in
Seller's possession. Buyer and its authorized agents, employees or
representatives shall be entitled to enter upon the Properties at all reasonable
times prior to the expiration of the Investigation Period, upon prior notice to
Seller and accompanied by a representative of Seller if required by Seller,
during the Investigation Period if this Agreement is not earlier terminated;
provided, however, that there shall be no interference with the business of
Seller or the residents of the Properties, Buyer's activities on the Properties
shall be in compliance with all applicable laws, rules and regulations and Buyer
shall restore the Properties to as near the same condition as they existed
immediately prior to the conducting of any such inspection, study or
investigation as is reasonably practicable immediately upon completion of each
such inspection, study or investigation. Buyer shall not permit any liens or
encumbrances to be asserted against the Properties in connection with or as a
result of such inspections, studies or investigations. Buyer shall indemnify,
defend and hold Seller, and Seller's partners, agents, employees and
representatives, and the Properties, harmless of, from and against any and all
losses, liabilities, costs, expenses (including, without limitation, reasonable
attorneys' fees and costs of court), damages, liens, claims (including, without
limitation, mechanics' or materialmen's liens or claims of liens), actions and
causes of action arising from or relating to the entry by Buyer (or Buyer's
agents, employees, contractors or representatives) upon the Properties, whether
to test, study, investigate or inspect the Properties pursuant to this Section
or otherwise, except only to the extent caused by the gross negligence or
willful misconduct of Seller. If, within the Investigation Period, Buyer shall
in Buyer's sole discretion be dissatisfied with any aspect of the Properties, or
shall decide for any other reason not to proceed with the transaction
contemplated under this Agreement, then Buyer, as its sole and exclusive remedy,
may terminate this Agreement by giving written notice thereof to Seller (with a
copy to the Title Company) prior to the expiration of the Investigation Period.
If Buyer does not terminate this Agreement prior to the expiration of the
Investigation Period, Buyer shall be deemed to have waived any right Buyer may
have to terminate this Agreement pursuant to this Section. Notwithstanding
anything to the contrary set forth in this Agreement, the covenants, agreements
and indemnities of Buyer in this Section shall expressly survive the Closing or
the termination of this Agreement. Buyer shall provide Seller a list of all
third parties it brings onto the Properties for the purpose of investigating the
Properties.
All information delivered to or obtained by Buyer during or prior to the
Investigation Period concerning the Properties is and shall remain the property
of Seller and shall be considered confidential proprietary information of
Seller, not to be disclosed to any third parties except as expressly provided
hereinafter. Notwithstanding the foregoing, except as otherwise set forth
below, Buyer may disclose such information to Buyer's attorneys, accountants and
other agents and affiliates reasonably necessary for the consummation of the
transaction contemplated herein and to no other person without Seller's written
consent, which consent shall not be unreasonably withheld or delayed; provided,
however, that Buyer shall control the dissemination of such information to
assure that any recipient preserves the confidential nature of the information.
Copies of any information compiled or obtained by Buyer from sources other than
Seller concerning the Properties (excluding proprietary business plans, work
product and projections) shall be delivered to Seller immediately upon
termination of this Agreement. The foregoing obligations shall survive
termination of this Agreement.
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7. EXISTING FINANCING:
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Buyer shall agree to use Buyer's best efforts, at Buyer's expense and with the
cooperation and assistance of Seller at no cost to Seller, to take title by
assuming existing promissory notes and deeds of trust in favor of the following
beneficiaries with the following approximate unpaid principal balances, annual
interest rates, and monthly payments ("Existing Financing"):
Approximate Annual Monthly
Beneficiaries Unpaid Balances Secured By Interest Rates Payments
------------- --------------- ---------- -------------- --------
Aztec Village Situs Servicing, Inc. $3,208,961 First Deed of Trust 8.69% $25,624.22
Village Park Situs Servicing, Inc. $3,601,039 First Deed of Trust 8.69% $28,753.90
Should Buyer fail to notify Seller prior to the expiration of the Investigation
Period that (a) Buyer accepts the terms and conditions of the Existing Financing
as set forth above; (b) Buyer has been accepted by the Lender to assume the
Existing Financing; and (c) Lender has agreed to release Seller from its
obligations under the Existing Financing by an instrument reasonably
satisfactory to Seller, then the Purchase Agreement shall terminate and the
entire Deposit shall be returned to Buyer immediately. Seller agrees to furnish
to Buyer, not less than ten (10) days before the Closing Date, a beneficiary
statement specifying the unpaid principal balances, unpaid interest, fees and
penalties of the Existing Financing as of the Closing Date. The parties hereto
agree that in the event there is any difference between the actual principal
balance of the Existing Financing and that which is stated herein, there shall
be a dollar for dollar adjustment in the cash down payment as same is set forth
in Section 3B hereof; provided however, in the event the unpaid principal
balances, unpaid interest, fees and penalties of the Existing Financing as of
the Closing Date are different than the amounts shown earlier in this paragraph,
the parties hereto acknowledge and agree that in no event shall Buyer be
required to pay more than the Purchase Price, as same is set forth in Section 3A
hereof, for the purchase of the Properties. Buyer shall make any guaranties
reasonably required by the above-referenced Beneficiaries to facilitate Buyer's
assumption of the Existing Financing.
8. INDEMNIFICATION:
====================
A. Without limiting any other rights or remedies available to Buyer, Seller
shall, in connection with the acts, omissions, agreements, covenants,
representations and warranties set forth in this Agreement by Seller indemnify,
defend and hold harmless Buyer, and its officers, partners, directors,
employees, agents, representatives, successors and assigns from, against and
with respect to any claim, liability, obligation, loss, damage, assessment,
judgment, cost and expense (including, without limitation, reasonable attorney's
fees and costs incurred at trial, appellate, bankruptcy or other proceedings and
accountant's fees and costs and expenses reasonably incurred in investigating,
preparing, defending against or prosecuting any litigation or claim, action,
suit, proceeding or demand), of any kind or character, arising out of or in any
manner relating or attributable to (and without giving effect to any tax benefit
to the indemnified party); (i) any material inaccuracy in any representation or
warranty of Seller contained in this Agreement or in any certificate, instrument
of transfer or other document or agreement executed by Seller in connection with
this Agreement, including, without limitation, material inaccuracies with
respect to representations and/or warranties concerning each Seller's right,
title and interest in and to the Properties, (ii) any failure by Seller to
perform or observe, or to have performed or observed, in full any covenant,
agreement or condition to be performed or observed by them under this Agreement
or under any certificates or other documents or agreements executed by Seller,
in connection with this Agreement, (iii) except as specifically described
herein, the operations of the Properties, prior to the Closing Date, including,
but not limited to all liabilities, suits, actions, damages and claims which may
be asserted or threatened against the Properties from and after the Closing
Date, but which shall have arisen out of any aspect of the business or
operations of the Properties prior to the Closing Date; (iv) to the extent Buyer
is the prevailing party, any costs relating to the enforcement by Buyer, of its
rights under this Agreement; and (v) any agreements, contracts, negotiations or
other dealings by Seller, concerning the sale of the Properties.
B. Without limiting any other rights or remedies available to Seller, Buyer
shall, indemnify, defend and hold harmless Seller and its respective officers,
partners, directors and employees from, against and with respect to any claim,
liability, obligation, loss, damage, assessment, judgment, cost and expense
(including, without limitation, reasonable attorney's fees and costs incurred at
trial, appellate, bankruptcy or other proceedings and accountant's fees and
costs and expenses reasonably incurred in investigating, preparing, defending
against or prosecuting any litigation or claim, action, suit, proceeding or
demand), of any kind or character, arising out of or in any manner relating or
attributable to (and without giving effect to any tax benefit to the indemnified
party): (i) any material inaccuracy in any representation or warranty of Buyer
contained in this Agreement or in any certificate, instrument of transfer or
other document or
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agreement executed by Buyer in connection with this Agreement or otherwise made
or given in connection with this Agreement, (ii) any failure by Buyer to perform
or observe, or to have performed or observed, in full any covenant, agreement or
condition to be performed or observed by them under this Agreement or under any
certificates or other documents or agreements executed by Buyer in connection
with this Agreement, (iii) except as specifically described herein, the
operations of the Properties, subsequent to the Closing Date, including, but not
limited to all liabilities, suits, actions, damages and claims which may be
asserted or threatened against the Properties from and after the Closing Date,
but which shall have arisen out of any aspect of the business or operations of
the Properties subsequent to the Closing Date; (iv) to the extent Seller is the
prevailing party, any costs relating to the enforcement by them of their rights
under this Agreement; and (v) any agreements, contracts, negotiations or other
dealings by Buyer, concerning the sale of the Properties.
C. Any party entitled to indemnification hereunder shall notify the
indemnifying party in a timely manner of any matters as to which they are
entitled to receive indemnification and/or defense under this Section 8, setting
forth in such notice in reasonable detail, the facts and circumstances giving
rise to the claim for indemnification.
9. COVENANTS AND CONDITIONS PRECEDENT:
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A. COVENANTS.
From the date of this Agreement until the earlier of (i) the termination of
this Agreement and (ii) the Closing Date, Seller shall conduct the business of
the Properties in the ordinary course, and during said period will:
(a) Except in the ordinary course of business, refrain from
transferring any portion of the Properties, incurring any indebtedness or
creating on the Properties any easements, liens, mortgages, encumbrances or
other interest without the prior written consent of Buyer;
(b) Refrain from entering into any contracts or other commitments
regarding the Properties, other than in the ordinary and usual course of
business, without the prior written consent of Buyer;
(c) Continue to maintain and repair the Properties and keep them in
the same condition and repair as they were as of the date hereof, and
continue all maintenance and services as heretofore provided;
(d) Comply as in the ordinary course of business with all notices
received by Seller of violation of laws or municipal ordinances,
regulations, orders or requirements of department of housing, building,
fire, labor, health, or other state, city or municipal departments or other
governmental authorities having jurisdiction against or affecting the
Properties or the use of operation thereof;
(e) Continue to pay, on or before due, any and all operating expenses
including all real estate and personal property taxes;
(f) Maintain in full force and effect all licenses and permits
necessary for the continued use and operation of the Properties;
(g) Assist the Buyer, at no cost to Seller, and use all reasonable
efforts to obtain prior to the Closing Date all necessary approvals and
consents to the transfer and assumption of those mortgage loans,
agreements, permits and licenses to be transferred hereunder or for which
consent or approval is required for their continued validity after the
consummation of the transaction contemplated by this Agreement. The parties
hereto acknowledge that Seller not be primarily responsible for the loan
assumption;
(h) Perform all obligations of Seller on a timely basis and without
default, under any Leases, mortgages, notes, Contracts or other agreements
relating to the Properties;
(i) Not amend, modify or waive any rights under any of the Leases or
enter into any new lease affecting the Properties (other than tenant leases
on standard terms and conditions and current market rates) without Buyer's
prior written consent which shall not be unreasonably withheld, delayed or
conditioned;
(j) Promptly advise Buyer of any material adverse change in the
financial condition of the Properties and of any material inaccuracies in
any of the information provided Buyer in connection therewith; and
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(k) From and after the date hereof, the Seller agrees it shall not,
nor shall any of their representatives or agents, continue or enter into
any discussions or agreements for the sale, of the Properties with any
party other than Buyer while this transaction is pending.
B. CONDITIONS PRECEDENT TO CLOSE
I. Anything to the contrary notwithstanding, Buyer shall have no
obligation to consummate this transaction, unless and until the conditions set
forth in this Section have been satisfied or waived by Buyer in writing. Such
conditions precedent are as follows:
(a) The representations and warranties of the Seller contained in
this Agreement or in any agreement or document delivered pursuant hereto
shall, to the best of Seller's actual knowledge be true and correct in all
material respects on and as of the Closing Date with the same effect as if
such representations and warranties had been made on and as of the Closing
Date, there shall not have been any material error, misstatement or
omission in any Exhibit, Schedule, or other document delivered in
connection herewith and there shall not have been any material adverse
change in the representations and warranties or schedules thereto as a
result of the updating of such representations, warranties or schedules as
required by this Agreement;
(b) Seller shall have performed and complied with all agreements and
covenants contained herein to be performed or complied with by them on or
prior to the Closing Date and satisfied all conditions required to be
performed, complied with, or satisfied by them on or prior to the Closing
Date;
(c) No evidence of contamination, other than as set forth in the
Environmental Report shall have been discovered;
(d) No suit, action, or other proceeding shall be pending or
threatened before any court (including Bankruptcy Court) or governmental
agency (including the appointment of a custodian, receiver trustee or
similar official) naming the Seller (to the extent any such suit, action or
proceeding would impact the ability of the Seller to perform its
obligations or satisfy the conditions to closing hereunder) as defendant or
affecting the Properties;
(e) During the period from the date hereof to the Closing Date there
shall not have been any material adverse change, in the general affairs,
business, financial position, results of operations of the Properties; and
Buyer shall have received a certificate to such effect dated as of Closing
Date signed by Seller. The delivery of such certificate shall in no way
diminish or supersede the warranties and representations of Seller made in
this Agreement; and
(f) No information which is contrary to any representations or
warranties contained herein which were made to the best of Seller's
knowledge was discovered .
II. Anything to the contrary notwithstanding, Seller shall have no
obligation to consummate this transaction, unless and until the conditions set
forth in this Section have been satisfied by Buyer or waived by Seller in
writing. Such conditions precedent are as follows:
(a) The representations and warranties of Buyer contained in this
Agreement shall, to the best of Buyer's actual knowledge, be true and
correct in all material respects on and as of the Closing Date with the
same effect as if such representations and warranties had been made on and
as of the Closing Date, there shall not have been any material error,
misstatement or omission in any Exhibit, Schedule, or other document
delivered by Buyer in connection herewith and there shall not have been any
material adverse change in the representations and warranties or schedules
thereto as a result of the updating of such representations, warranties or
schedules as required by this Agreement;
(b) Buyer shall have performed and complied with all agreements and
covenants contained herein to be performed or complied with by them on or
prior to the Closing Date and satisfied all conditions required to be
performed, complied with, or satisfied on or prior to the Closing Date; and
(c) Seller shall have been released from its obligations under the
Existing Financing.
Notwithstanding anything stated herein to the contrary, in the event that
Buyer or Seller is unable to satisfy any of the above listed condition
precedents and such failure is not under the control of the failing party, the
non-failing party's sole remedy is to terminate the Agreement, the Deposit shall
then be returned to Buyer and the parties shall have no
8
further rights, duties or obligations to each other hereunder.
10. PRORATIONS:
================
All prorations shall be made in a manner that Seller has the benefit of all
income and the burden of all expenses up to, but not including the Closing Date
and Buyer has the benefit of all income and the burden of all expenses through
and including the Closing Date. Rents, non-delinquent real property taxes, and
any other expenses of the Properties shall be prorated as of Closing Date.
Security deposits, advance rentals, and consideration involving future lease
credits shall be credited to Buyer. Delinquent rents shall not be prorated and
Buyer has no obligation to collect them but will reimburse Seller for any
collected. THE AMOUNT OF ANY BOND OR ASSESSMENT WHICH IS A LIEN ON THE
PROPERTIES SHALL BE ASSUMED BY THE BUYER. NOTWITHSTANDING THE FOREGOING
PARAGRAPH, SELLER SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL BONDS OR
ASSESSMENTS (OR INSTALLMENT PAYMENTS) WHICH ARE DELINQUENT AS OF THE CLOSING
DATE.
11. TAX DEFERRED EXCHANGE:
===========================
It is the intent of the Seller that this transaction be a tax deferred exchange
pursuant to Internal Revenue Code Section 1031. However, no party to the
Purchase Agreement has or will make any representation or warranty to any other
party with respect to such tax treatment. Buyer and Seller will agree to
cooperate with each other in their respective attempts to effect said 1031 tax
deferred exchange.
12. TITLE TO PROPERTY AND AUTHORITY FOR TRANSACTION:
=====================================================
a. Rio Grande Investors, LLC ("Rio Grande") represents and warrants to Buyer
that Seller is constituted as follows, Rio Grande Investors, LLC, a New
Mexico Limited Liability Company, Batinovich Trust, Xxxxxxx X. Xxxxx Trust,
Xxxxxx X. Xxxxx Trust and the Xxxxxxx Family 1995 Revocable Trust; that Rio
Grande is duly authorized and empowered to execute this Agreement and any
subsequent agreement. That the signatory for Rio Grande on this Agreement,
is authorized to bind Rio Grande. Rio Grande further represents and
warrants to Buyer that: it has the full power and authority to own
properties and to carry on business as now conducted, and is, if necessary,
in good standing and duly qualified to conduct business in New Mexico. This
Agreement and all other agreements or documents to be executed by Rio
Grande pursuant hereto are or shall be as of the Closing Date, as the case
may be, duly executed and delivered by Rio Grande and be valid, binding and
enforceable in accordance with their respective terms. Neither the
execution of this Agreement nor the consummation of the transactions
contemplated herein will (i) constitute or cause a breach or violation of
or require a consent under any agreement to which any Rio Grande is bound,
including but not limited to, any right of first refusal or option to
purchase granted to a third party, which might prevent the consummation of
the transaction contemplated herein or which might bind Rio Grande,
subsequent to the consummation of this Agreement, (ii) cause a lien or
other encumbrance to attach to the Properties, or result in the
acceleration of or the right to accelerate any obligation under any
material agreement or the termination of the right to terminate any
material license, franchise, lease, permit, approval or agreement to which
Rio Grande is a party, or require a consent of any person to prevent such
breach, default, violation, lien, encumbrance, acceleration, right or
termination which have not been obtained or (iii) give rise to any other
rights, at law or by agreement, that would give rise to any rights of first
refusal or prevent the consummation of the transaction contemplated herein.
To the best of Rio Grande's knowledge (i) Rio Grande has the complete and
unrestricted power to sell and assign the Properties to Buyer; (ii) as of
the Closing Date there will be no restrictions (with the exception of the
Permitted Exceptions) upon the vesting in Buyer of title to the Properties
and all personal property and park owned homes, if any, shall be free and
clear of liens, encumbrances and other claims of any kind whatsoever, and
such title shall then vest in Buyer; and (iii) no approval of or filing
with any federal, state or local court, authority or administrative agency
is necessary to authorize the execution and delivery of this Agreement by
Rio Grande or the consummation of the transaction contemplated herein.
b. Xxxx Xxxxx Xxxxxxxxxx ("Batinovich"), as Trustee of the Xxxx Xxxxx
Xxxxxxxxxx Trust dtd 4/13/90 ("Batinovich Trust"), represents and warrants
to Buyer that Seller is constituted as follows: Rio Grande Investors, LLC,
a New Mexico Limited Liability Company, Batinovich Trust, Xxxxxxx X. Xxxxx
Trust, Xxxxxx X. Xxxxx Trust and the Xxxxxxx Family 1995 Revocable Trust;
that Batinovich is duly authorized and empowered as Trustee of the
Batinovich Trust, to execute this Agreement and any subsequent agreement.
Batinovich further represents and warrants to Buyer that: the Batinovich
Trust has the full power and authority to own properties and to carry on
business as now conducted, and is, if necessary, in good standing and duly
qualified to conduct business in New
9
Mexico. This Agreement and all other agreements or documents to be executed
by Batinovich pursuant hereto are or shall be as of the Closing Date, as
the case may be, duly executed and delivered by the Batinovich Trust and be
valid, binding and enforceable in accordance with their respective terms.
Neither the execution of this Agreement nor the consummation of the
transactions contemplated herein will (i) constitute or cause a breach or
violation of or require a consent under any agreement to which any the
Batinovich Trust is bound, including but not limited to, any right of first
refusal or option to purchase granted to a third party, which might prevent
the consummation of the transaction contemplated herein or which might bind
the Batinovich Trust, subsequent to the consummation of this Agreement,
(ii) cause a lien or other encumbrance to attach to the Properties, or
result in the acceleration of or the right to accelerate any obligation
under any material agreement or the termination of the right to terminate
any material license, franchise, lease, permit, approval or agreement to
which the Batinovich Trust is a party, or require a consent of any person
to prevent such breach, default, violation, lien, encumbrance,
acceleration, right or termination which have not been obtained or (iii)
give rise to any other rights, at law or by agreement, that would give rise
to any rights of first refusal or prevent the consummation of the
transaction contemplated herein. To the best of Batinovich's knowledge (i)
the Batinovich Trust has the complete and unrestricted power to sell,
assign and deliver to Buyer unencumbered title (with the exception of the
Permitted Exceptions) to the Properties; (ii) as of the Closing Date there
will be no restrictions (with the exception of the Permitted Exceptions)
upon the vesting in Buyer of title to the Properties and all personal
property and park owned homes, if any, shall be free and clear of liens,
encumbrances and other claims of any kind whatsoever, and such title shall
then vest in Buyer; and (iii) no approval of or filing with any federal,
state or local court, authority or administrative agency is necessary to
authorize the execution and delivery of this Agreement by Batinovich or the
consummation of the transaction contemplated herein.
c. Xxxxxxx X. Xxxxx ("X. Xxxxx"), as Trustee of the Xxxxxxx X. Xxxxx Trust dtd
10/10/90 (the "X.Xxxxx Trust"), represents and warrants to Buyer that
Seller is constituted as follows: Rio Grande Investors, LLC, a New Mexico
Limited Liability Company, Batinovich Trust, Xxxxxxx X. Xxxxx Trust, Xxxxxx
X. Xxxxx Trust and the Xxxxxxx Family 1995 Revocable Trust; that X. Xxxxx
is duly authorized and empowered as Trustee of the X. Xxxxx Trust, to
execute this Agreement and any subsequent agreement.. X. Xxxxx further
represents and warrants to Buyer that: the X. Xxxxx Trust has the full
power and authority to own properties and to carry on business as now
conducted, and is, if necessary, in good standing and duly qualified to
conduct business in New Mexico. This Agreement and all other agreements or
documents to be executed by X. Xxxxx pursuant hereto are or shall be as of
the Closing Date, as the case may be, duly executed and delivered by the X.
Xxxxx Trust and be valid, binding and enforceable in accordance with their
respective terms. Neither the execution of this Agreement nor the
consummation of the transactions contemplated herein will (i) constitute or
cause a breach or violation of or require a consent under any agreement to
which any the X. Xxxxx Trust is bound, including but not limited to, any
right of first refusal or option to purchase granted to a third party,
which might prevent the consummation of the transaction contemplated herein
or which might bind the X. Xxxxx Trust, subsequent to the consummation of
this Agreement, (ii) cause a lien or other encumbrance to attach to the
Properties, or result in the acceleration of or the right to accelerate any
obligation under any material agreement or the termination of the right to
terminate any material license, franchise, lease, permit, approval or
agreement to which the X. Xxxxx Trust is a party, or require a consent of
any person to prevent such breach, default, violation, lien, encumbrance,
acceleration, right or termination which have not been obtained or (iii)
give rise to any other rights, at law or by agreement, that would give rise
to any rights of first refusal or prevent the consummation of the
transaction contemplated herein. To the best of X. Xxxxx' knowledge (i) The
X. Xxxxx Trust has the complete and unrestricted power to sell, assign and
deliver to Buyer unencumbered title (with the exception of the Permitted
Exceptions) to the Properties; (ii) as of the Closing Date there will be no
restrictions (with the exception of the Permitted Exceptions) upon the
vesting in Buyer of title to the Properties and all personal property and
park owned homes, if any, shall be free and clear of liens, encumbrances
and other claims of any kind whatsoever, and such title shall then vest in
Buyer; and (iii) no approval of or filing with any federal, state or local
court, authority or administrative agency is necessary to authorize the
execution and delivery of this Agreement by X. Xxxxx or the consummation of
the transaction contemplated herein .
x. Xxxxxx X. Xxxxx ("X. Xxxxx"), as Trustee of the Xxxxxx X. Xxxxx Trust dtd
3/14/90 (the "X. Xxxxx Trust"), represents and warrants to Buyer that
Seller is constituted as follows: Rio Grande Investors, LLC, a New Mexico
Limited Liability Company, Batinovich Trust, Xxxxxxx X. Xxxxx Trust, Xxxxxx
X. Xxxxx Trust and the Xxxxxxx Family 1995 Revocable Trust; that X. Xxxxx
is duly authorized and empowered as Trustee of the X. Xxxxx Trust, to
execute this Agreement and any subsequent agreement. X. Xxxxx further
represents and warrants to Buyer that: the X. Xxxxx Trust has the full
power and authority to own properties and to carry on business as now
conducted, and is, if necessary, in good standing and duly qualified to
conduct business in New Mexico. This Agreement and all other agreements or
documents to be executed by X. Xxxxx pursuant hereto are or shall be
10
as of the Closing Date, as the case may be, duly executed and delivered by
the X. Xxxxx Trust and be valid, binding and enforceable in accordance
with their respective terms. Neither the execution of this Agreement nor
the consummation of the transactions contemplated herein will (i)
constitute or cause a breach or violation of or require a consent under
any agreement to which any the X. Xxxxx Trust is bound, including but not
limited to, any right of first refusal or option to purchase granted to a
third party, which might prevent the consummation of the transaction
contemplated herein or which might bind the X. Xxxxx Trust, subsequent to
the consummation of this Agreement, (ii) cause a lien or other encumbrance
to attach to the Properties, or result in the acceleration of or the right
to accelerate any obligation under any material agreement or the
termination of the right to terminate any material license, franchise,
lease, permit, approval or agreement to which the X. Xxxxx Trust is a
party, or require a consent of any person to prevent such breach, default,
violation, lien, encumbrance, acceleration, right or termination which
have not been obtained or (iii) give rise to any other rights, at law or
by agreement, that would give rise to any rights of first refusal or
prevent the consummation of the transaction contemplated herein. To the
best of X. Xxxxx' knowledge (i) the X. Xxxxx Trust has the complete and
unrestricted power to sell, assign and deliver to Buyer unencumbered title
(with the exception of the Permitted Exceptions) to the Properties; (ii)
as of the Closing Date there will be no restrictions (with the exception
of the Permitted Exceptions) upon the vesting in Buyer of title to the
Properties and all personal property and park owned homes, if any, shall
be free and clear of liens, encumbrances and other claims of any kind
whatsoever, and such title shall then vest in Buyer; and (iii) no approval
of or filing with any federal, state or local court, authority or
administrative agency is necessary to authorize the execution and delivery
of this Agreement by X.Xxxxx or the consummation of the transaction
contemplated herein.
e. Xxxx X. Xxxxxxx ("Xxxxxxx"), as Trustee of the Xxxxxxx Family 1995
Revocable Trust dtd (the "Xxxxxxx Trust"), represents and warrants to
Buyer that Seller is constituted as follows: Rio Grande Investors, LLC, a
New Mexico Limited Liability Company, Batinovich Trust, Xxxxxxx X. Xxxxx
Trust, Xxxxxx X. Xxxxx Trust and the Xxxxxxx Family 1995 Revocable Trust;
that Xxxxxxx is duly authorized and empowered as Trustee of the Xxxxxxx
Trust, to execute this Agreement and any subsequent agreement. Xxxxxxx
further represents and warrants to Buyer that: the Xxxxxxx Trust has the
full power and authority to own properties and to carry on business as now
conducted, and is, if necessary, in good standing and duly qualified to
conduct business in New Mexico. This Agreement and all other agreements or
documents to be executed by Xxxxxxx pursuant hereto are or shall be as of
the Closing Date, as the case may be, duly executed and delivered by the
Xxxxxxx Trust and be valid, binding and enforceable in accordance with
their respective terms. Neither the execution of this Agreement nor the
consummation of the transactions contemplated herein will (i) constitute
or cause a breach or violation of or require a consent under any agreement
to which any the Xxxxxxx Trust is bound, including but not limited to, any
right of first refusal or option to purchase granted to a third party,
which might prevent the consummation of the transaction contemplated
herein or which might bind the Xxxxxxx Trust, subsequent to the
consummation of this Agreement, (ii) cause a lien or other encumbrance to
attach to the Properties, or result in the acceleration of or the right to
accelerate any obligation under any material agreement or the termination
of the right to terminate any material license, franchise, lease, permit,
approval or agreement to which the Xxxxxxx Trust is a party, or require a
consent of any person to prevent such breach, default, violation, lien,
encumbrance, acceleration, right or termination which have not been
obtained or (iii) give rise to any other rights, at law or by agreement,
that would give rise to any rights of first refusal or prevent the
consummation of the transaction contemplated herein. To the best of
Xxxxxxx'x knowledge (i) the Xxxxxxx Trust has the complete and
unrestricted power to sell, assign and deliver to Buyer unencumbered title
(with the exception of the Permitted Exceptions) to the Properties; (ii)
as of the Closing Date there will be no restrictions (with the exception
of the Permitted Exceptions) upon the vesting in Buyer of title to the
Properties and all personal property and park owned homes, if any, shall
be free and clear of liens, encumbrances and other claims of any kind
whatsoever, and such title shall then vest in Buyer; and (iii) no approval
of or filing with any federal, state or local court, authority or
administrative agency is necessary to authorize the execution and delivery
of this Agreement by Xxxxxxx or the consummation of the transaction
contemplated herein.
f. Seller further represents and warrants that, to the best of its knowledge,
Seller has good and marketable title to the Properties and all assets used
in the operation or management of the Properties and all such assets are
free and clear of all liens and encumbrances except for the Permitted
Exceptions and there are no mechanics' liens or any other liens that might
bind the Properties as of the Closing Date other than as shown on the
Commitments.
13. PHYSICAL CONDITION OF THE PROPERTIES:
============================================================
I. Seller represents and warrants to Buyer that as of the date hereof, and as
of the Closing Date:
11
a. The Properties are served by utilities, including water, sewage, gas,
waste disposal, electricity, cable television and telephone, and the Seller
is not aware of any inadequacies with respect to such utilities, inclusive of
utility service for any sites which could be developed in the future.
b. Xxx Xxxxxxx Xxxx XXXX Xxxxx Xxxxxxxxx Xxxx Xxx Xx. 00000X0000X,
effective 9/20/96, indicated two thirds of the property is located in Zone X,
defined as an area outside the 500 year flood plain and approximately one-
third of the property is located in Zone AH, which is within the 100 year
flood plain at water depths of from 1 to 3 feet, usually areas of ponding.
14. RISK OF LOSS:
============================
Any risk of loss to the Properties shall be the Seller's until fee simple title
has been conveyed to Buyer. In the event that the improvements on the
Properties are destroyed, materially damaged or condemned in part or in whole,
between the Effective Date and the Closing Date, Seller shall have the option to
terminate this Agreement or, at Seller's expense, to repair said improvements
and restore them to the condition that existed on the Effective Date. If Seller
elects to repair the improvements, Buyer may, at Buyer's option, elect to accept
a cash credit in escrow of an agreed upon amount and take title to such
improvements as Seller can deliver.
15. LEGAL UNITS:
======================
Seller represents and warrants that to the best of Seller's actual knowledge,
the Properties are in full compliance with all applicable zoning ordinances, all
terms and conditions of any site plan or planned unit development approvals, and
any other laws, rules or regulations. To the best of Seller's knowledge, the
Properties are zoned for 163 (Aztec Village) and 180 (Village Park) legal,
licensed mobile home units. To the best of Seller's knowledge, the Properties,
the mobile home pad sites and Seller have all licenses and permits necessary for
operation of the Properties as manufactured housing communities with all
amenities (i.e. swimming pool) currently located at the Properties;
16. LIQUIDATED DAMAGES:
=====================================
If Buyer fails to complete the purchase of the Properties as provided by this
Agreement by reason of any default of Buyer, Seller shall be released from its
obligation to sell the Properties to Buyer and may proceed against Buyer upon
any claim or remedy which Seller may have in law or equity. However, Buyer and
Seller hereby acknowledge and agree by their initials below that it would be
impractical to fix or establish the actual damage sustained by Seller as a
result of such a default by Buyer, and that the amount of the Deposit is a
reasonable approximation thereof. Accordingly, if Buyer fails to complete the
purchase due to Buyer's default, the Deposit shall constitute and be deemed to
be the agreed upon damages of Seller and shall be paid by Buyer to Seller.
Seller agrees to waive all other remedies against the Buyer which Seller might
otherwise have in law or equity by reason of such default by Buyer.
Buyer: /s/Xxxxx Xxxxxxxxx, Authorized Agent Seller:/s/Xxxxx Xxxxx Batinvonich
------------------------------------- --------------------------
/s/Xxxxxxx X. Xxxxxxx
---------------------
/s/Xxxxxxx X. Xxxxx
-------------------
/s/Xxxxxx X. Xxxxx
------------------
/s/Xxxx X. Xxxxxxx
------------------
12
17. MEDIATION OF DISPUTES:
=======================================
BUYER AND SELLER AGREE TO MEDIATE ANY DISPUTE OR CLAIM BETWEEN THEM ARISING OUT
OF THIS AGREEMENT OR ANY RESULTING TRANSACTION BEFORE RESORTING TO ARBITRATION
OR COURT ACTION. Mediation is a process in which parties attempt to resolve a
dispute by submitting it to an impartial, neutral mediator who is authorized to
facilitate the resolution of the dispute but who is not empowered to impose a
settlement on the parties. Mediation fee, if any, shall be divided equally
among the parties involved. Before the mediation begins, the parties agree, if
allowed by applicable laws, to sign a document limiting the admissibility in
arbitration or any civil action of anything said, any admission made, and any
documents prepared, in the course of the mediation. IF ANY PARTY COMMENCES AN
ARBITRATION OR COURT ACTION BASED ON A DISPUTE OR CLAIM TO WHICH THIS PARAGRAPH
APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THE MATTER THROUGH MEDIATION, THEN
IN THE DISCRETION OF THE ARBITRATOR(S) OR JUDGE, THAT PARTY SHALL NOT BE
ENTITLED TO RECOVER ATTORNEY'S FEES EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO
THAT PARTY IN ANY SUCH ARBIRATION OR COURT ACTION. However, the filing of a
judicial action to enable the recording of a notice of pending action, for order
of attachment, receivership, injunction, or other provisional remedies, shall
not in itself constitute a loss of the right to recover attorney's fees under
this provision. The following matters are excluded from a requirement of
mediation hereunder: (a) a judicial or non-judicial foreclosure or other action
or proceeding to enforce a deed of trust or mortgage (b) an unlawful detainer
action, (c) the filing or enforcement of a mechanic's lien, and (d) any matter
which is within the jurisdiction of a probate court.
18. ARBITRATION OF DISPUTES:
=======================================
Any disputes or claim in law or equity between Buyer and Seller arising out of
this Agreement or any resulting transaction which is not settled through
mediation shall be decided by neutral, binding arbitration and not by a court
action, except as provided by New Mexico law for judicial review of arbitration
proceedings.
The arbitration shall be conducted in accordance with the rules of either the
American Arbitration Association (AAA) or Judicial Arbitration and Mediation
Services, Inc. (JAMS). The selection between AAA and JAMS rules shall be made
by the claimant first filing for the arbitration. The parties to an arbitration
may agree in writing to use different rules and/or arbitrators. In all other
respects, the arbitration shall be conducted in accordance with the appropriate
provisions of the New Mexico Code of Civil Procedure (the "Code"). Judgment
upon the award rendered by the arbitrator(s) may be rendered in any court having
jurisdiction thereof. The parties shall have the right to discovery in
accordance with the Code. The following matters are excluded from arbitration
hereunder: (a) a judicial or non-judicial foreclosure or other action or
proceeding to enforce a deed of trust or mortgage (b) an unlawful detainer
action, (c) the filing or enforcement of a mechanic's lien, and (d) any matter
which is within the jurisdiction of a probate or small claims court, and (e)
arbitration for bodily injury or wrongful death, or for latent or patent
defects. The filing of a judicial action to enable the recording of a notice of
pending action, for order of attachment, receivership, injunction, or other
provisional remedies shall not constitute a waiver of the right to arbitrate
under this provision.
Any controversy arising from this Agreement or its breach shall be determined by
three arbitrators appointed as set out below:
Within Ten (10) days after a notice by either party to the other requesting
arbitration and stating the basis of the party's claim, one arbitrator shall be
appointed by each party. Notice of the appointment shall be given by each party
to the other when made.
The two arbitrators shall immediately choose a third arbitrator to act with
them. If they fail to select a third arbitrator within Ten (10) days of their
appointment, on application by either party the third arbitration shall be
promptly appointed by the then presiding judge of the Superior Court of the
State of New Mexico in and for the County of Bernalillo acting as an individual.
The party making the application shall give the other party Five (5) days notice
of the application.
The arbitration shall be conducted pursuant to the Code. Hearings shall be held
in Bernalillo County where the Properties are located in New Mexico. All
notices, including notices required under the Code shall be given as provided in
paragraph 22.
13
NOTICE: BY INITIALING IN THIS SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY NEW MEXICO LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY
TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS
TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICLLY INCLUDED IN THE
`ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CODE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION
INVOLUNTARY."
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTER INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL
ARBITRATION.
Buyer: /s/Xxxxx Xxxxxxxxx, Authorized Agent Seller:/s/Xxxxx Xxxxx Batinvonich
------------------------------------ ---------------------------------
/s/Xxxxxxx X. Xxxxxxx
---------------------
/s/Xxxxxxx X. Xxxxx
-------------------
/s/Xxxxxx X. Xxxxx
------------------
/s/Xxxx X. Xxxxxxx
------------------
19.SELLER REPRESENTATIONS, WARRANTIES AND DISCLOSURE:
================================================================================
I. Seller represents and warrants to Buyer that as of the date hereof, and as
of the Closing Date:
a. Seller has no actual knowledge of any impending, threatened or
contemplated action of eminent domain or any other public or quasi-public
taking in connection with the Properties. Seller, to the best of Seller's
actual knowledge, has not received any notices from any government or other
agency of any violation of any laws, ordinances, rules or regulations with
respect to the Properties, the violation of which would have a material
adverse impact on the Properties. Seller has no actual knowledge that there
are any lawsuits pending or existing concerning these Properties or Seller's
ability to perform under this Agreement.
b. Seller will make available to Buyer for inspection and review by
appointment at the park office all documents (or legible copies thereof) in
its possession relating to the construction, condition or repair of the
Properties and any building and/or construction plans relating to the
Properties that are in the possession of Seller.
c. To the best of Seller's actual knowledge, the Properties are not subject
to any judgment, order, writ, injunction or decree of any court or
governmental instrumentality which might prohibit the consummation of the
transaction contemplated herein or have a material adverse effect on the
Properties, there is no claim, litigation or proceeding pending and also, to
the best of the Seller's knowledge, there are no claims, litigation or
proceedings threatened or investigation pending against Seller or the
Properties which might prohibit the consummation of the transaction
contemplated herein or have an adverse effect on the Properties (including
the appointment of a custodian, receiver trustee or similar official).
d. To the best of Seller's actual knowledge, neither the whole nor any
portion of the Properties are subject, directly or indirectly, to any
governmental decree or order to be sold, condemned, expropriated or otherwise
taken by any public authority, nor are there any existing facts or conditions
known to Seller which might give rise to any forced sale, condemnation,
expropriation or other taking.
e. To the best of Seller's actual knowledge, the Properties are not
currently subject to and Seller has not received any written notice of any
planned or commenced public improvements which may result in special
assessments against the Properties.
f. The Rent Rolls attached as Schedule 19(f) hereto (including all
--------------
information required to be included pursuant to Section 6A(4) hereof) and
made a part hereof is true, complete and correct in all material respects.
g. Other than as set forth on the Rent Rolls, there are no direct or
indirect economic terms and conditions, including any rent concessions or
rebates affecting any tenant lease or limiting increases in rents.
14
h. Seller has made available on site to Buyer true and correct copies of
all written Leases which are identified on the Rent Rolls. There are no
amendments or modifications to such Leases either written or oral, except for
amendments or modifications in writing, copies of which have been furnished
to Buyer and identified. The Leases are in full force and effect. Except as
set forth on Schedule 19(h), there are no defaults by Seller (and to the best
--------------
of Seller's actual knowledge, by the tenants) under the Leases and the Leases
are fully assignable to Buyer by the Seller.
i. Attached hereto as Schedule 19(i) is a true and correct list of all
--------------
management, leasing, service, employment and other contracts or agreements of
every kind and nature affecting the Properties ("Contracts"), together with
any amendments thereto.
j. That there is not currently, nor to the best of Seller's knowledge, has
there been since the initial development of the Properties as manufactured
housing communities, a community prospectus for either of the Properties.
k. The representations and warranties of Seller contained in this
Agreement and to Seller's actual knowledge, all schedules, exhibits,
certificates and statements and information prepared and furnished to Buyer
or on behalf of by Seller in connection with the transactions contemplated
hereby are accurate and complete in all material respects, and do not and
will not contain any untrue statement of material fact, or omit to state a
material fact necessary to make the statements herein and therein not
misleading in light of the circumstances in which they were made. Seller
acknowledges and agrees that Buyer's reliance upon the representations and
warranties of Seller contained in this Agreement shall not be diminished or
effected in any way by Buyer conducting and completing a purchase
investigation of the Properties, except to the extent Buyer had actual
knowledge of the breach of such representation and warranty prior to the
Closing Date.
With the exception of all covenants, representations and warranties made by
Seller herein, Buyer acknowledges and agrees that it is purchasing the
Properties in their "AS IS" condition.
20. HAZARDOUS MATERIALS:
=======================================
Seller represents and warrants for the benefit of Buyer that to the best of
Seller's actual knowledge, Seller has not caused hazardous materials to be
disposed of or used at the Properties, other than those diminimis amounts
normally used in or disposed of in connection with the operation of a
manufactured housing community.
During Seller's ownership and, to the best of Seller's knowledge, prior to its
ownership, except as disclosed in the Environmental Reports, the Properties (i)
have not been used to handle, treat, store or dispose of asbestos, PCB's,
ureaformaldhyde or any hazardous or toxic waste or substance, in violation of
applicable law and (ii) has not otherwise been contaminated, tainted or
polluted, (including, without limitation, contamination of soils, groundwater
and surface waters located on, in or under such premises) with pollutants or
other substances which contamination may give rise to a clean-up obligation
under any federal, state or local law, rule, regulation or ordinance or the
common law. To the best of Seller's actual knowledge and except as disclosed in
the Environmental Reports, all wastes have been utilized, stored and disposed
of, whether hazardous or not, in full compliance with all applicable local,
state and federal laws and regulations so as not to result in contamination of
the Property including, without limitation, soil, groundwater and surface water
located on, in or under such Property and the Properties are free from any
environmental contamination of any kind.
To the best of Seller's actual knowledge, neither Seller nor any third party has
used, generated, manufactured, produced, stored or disposed of on, under or
about the Properties or transported to or from the Properties any explosives,
asbestos, radioactive materials, hazardous waste, toxic substances or related
injurious materials, whether injurious by themselves or in combination with
other materials (collectively, "Hazardous Materials") other than materials used
in mobile home park operations on the Properties, some of which are considered
to be Hazardous Materials. To the best of Seller's actual knowledge, there is
no proceeding or inquiry by any governmental authority with respect to the
presence of such Hazardous Materials on the Properties or the migration thereof
from or to other property.
15
21. SUCCESSORS AND ASSIGNS:
=============================================
This Agreement and any addendum hereto shall be binding upon and inure to the
benefit of the heirs, successors, representatives and assigns of the parties
hereto. Buyer may only assign this Agreement to an affiliate entity. Any
assignment not permitted hereunder shall be void.
22. NOTICES:
==================
All notices required or permitted by this Agreement shall be given in writing,
in person, by mail, or by facsimile to the Buyer and Seller at the addresses set
forth below.
Buyer: Chateau Communities, Inc.
Address: 0000 X. Xxxxxxxx Xxx
Xxxxxxxxx Xxxxxxx, XX 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy to:
Buyer: Timmis & Xxxxx LLP,
Attn: Xxxxxxx X. Xxxxxxxxxxxxx
Address: 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Sellers: Rio Grande Investors, LLC Batinovich Trust dated 4/13/90
c/o Follett Investment Properties, Inc. Xxxx Xxxxx Xxxxxxxxxx, Trustee
Address: 00000 Xxxx Xxxxxxx Xxxx., Xxx. 000 0000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000 Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Xxxxxxx X. Xxxxx Trust dated 10/10/90 Xxxxxx X. Xxxxx Trust dated 3/14/90
Xxxxxxx X. Xxxxx, Trustee Xxxxxx X. Xxxxx, Trustee
1205 Sierra 0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxxx Family 1995 Revocable Trust
Xxxx X. Xxxxxxx, Trustee
00000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
With a copy to:
Buyer: Xxxxxx X. Xxxxx, Esq.
Address: 000 Xxxxxxxxxx Xxx., Xxxxx 000X
Xxx Xxxxx, XX 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
23. AUTHORIZATION:
===========================
Buyer and Seller authorize each other to disseminate sales information regarding
this transaction to the public after the Closing Date, including, but not
limited to, the purchase price of the Properties.
16
24. ATTORNEYS' FEES:
==============================
If this Agreement gives rise to a lawsuit, mediation, arbitration or other legal
proceeding between any of the parties hereto, the prevailing party shall be
entitled to recover its costs and reasonable attorneys' fees.
25. ADDENDA:
===================
Any addendum attached hereto and either signed or initialed by the parties shall
be deemed a part hereof. This Agreement, including addenda, if any, expresses
the entire Agreement of Seller and Buyer and supersedes any and all previous
agreements between Seller and Buyer with regards to the Properties. There are
no other understandings, oral or written, which in any way alter or enlarge the
terms hereof, and there are no warranties or representations of any nature
whatsoever, either express or implied, except as may be set forth herein. Any
further modification of this Agreement will be effective only if it is in
writing and signed by all parties.
26. TIME:
============
Time is of the essence in the performance of this Agreement.
27. GOVERNING LAW AND VENUE:
=============================================
This Agreement shall be governed by the laws of the State of New Mexico, and the
proper venue for judicial resolution of any disputes regarding this Agreement in
the County of Bernalillo.
28. DISCLOSURE OF REAL ESTATE LICENSURE:
============================================================
The managing member of Rio Grande Investors, LLC (one of the Sellers in this
transaction) is the President of Xxxxxxx Investment Properties, Inc., a
California licensed real estate Broker.
29. OTHER TERMS AND CONDITIONS:
=====================================================
A. PHASE I ENVIRONMENTAL AND ALTA SURVEY. Seller agrees to reimburse Buyer at
--------------------------------------
closing for no more than Two Thousand ($2,000) dollars towards the cost to
update Seller's existing ALTA survey of each Property. Buyer will pay for
the Phase I Environmental Report and engineering reports.
B. CLOSING. Notwithstanding anything stated herein to the contrary, the
--------
Closing shall be contingent upon the closing on Longview Mobile Home
Community, another manufactured housing community in Albuquerque, New
Mexico that is controlled by the Seller (the "Longview Property").
Notwithstanding anything stated herein to the contrary, in the event of a
default by Seller hereunder, Buyer shall have the right to specific
performance along with the right to pursue all other remedies allowed under
New Mexico Law. A default by either party under this Agreement shall be
deemed a default under the Longview Contract and the non-defaulting party
shall have the right to specific performance along with the right to pursue
all other remedies allowed under New Mexico law.
C. WATER METER LEASE. Buyer agrees to assume the monthly payments of $370.30
--------------------
made payable to Park Utilities, Inc. for the lease on the water meters at
Aztec Village. The lease is for 86 months beginning approximately November
1996.
D. HEADINGS. The headings of any of the Paragraphs hereof are for convenience
---------
only and shall not control or affect the meaning or construction or limit
the scope or intent of any of the provisions of this Agreement.
E. POST CLOSING REVIEW. Seller hereby agrees and covenants to cooperate fully,
--------------------
at no expense to itself, with Buyer's review of Seller's financial
information after Closing. The parties hereby acknowledge and agree that
the purpose of this review is not to allow an adjustment of the Purchase
Price by either party hereto and shall not be used for same.
Notwithstanding the foregoing, in the event the review causes Buyer to
discover a breach of any provision under this Agreement, Buyer shall be
entitled to pursue all remedies available to it as a result of such breach.
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30. PROCURING CAUSE:
===================================
All parties hereto acknowledge and agree that no brokerage commissions are due
on this transaction and Buyer and Seller agree to hold each other harmless with
regard to anyone claiming a commission or fee by or through them.
AGREED AND ACCEPTED BY BUYER:
CP LIMITED PARTNERSHIP, a Maryland Limited Partnership
ITS: Managing General Partner
By: /s/Xxxxx Xxxxxxxxx 5/13/99 Address: 0000 X. Xxxxxxxx Xxx
-------------------------- ---------------
Xxxxx Xxxxxxxxx Date Xxxxxxxxx Xxxxxxx, XX 00000
Authorized Agent
31. ACCEPTANCE:
========================
Buyer's signature hereon constitutes an offer to purchase the Properties on the
terms and conditions set forth herein. Unless acceptance hereof is made on or
before May 15, 1999, 5:00 p.m. P.S.T. this offer shall be null and void, the
deposit shall be returned to Buyer, and neither Seller nor Buyer shall have any
further rights or obligations hereunder. Acceptance shall be made by Seller's
signature on this Agreement and conveyance to Buyer or Buyer's agent, by
telephone or written means, of the fact that such signature and acceptance has
occurred.
Seller accepts the foregoing offer and agrees to sell the Properties to Buyer
for the price and on the terms and conditions stated herein. Seller
acknowledges receipt of an executed copy of this Agreement .
32. COUNTERPARTS:
==========================
The parties may execute this Agreement, any and all addends attached hereto, and
any and all future modifications of this agreement in two or more counterparts
or by fax which shall, in the aggregate, be signed by all the parties; each
counterpart shall be deemed an original instrument as against any party who has
signed it.
AGREED AND ACCEPTED BY SELLER/EXCHANGER:
RIO GRANDE INVESTORS, LLC
A New Mexico Limited Liability Company
By: /s/Xxxxxxx X. Xxxxxx 5/12/99 Address: 00000 Xxxx Xxxxxxx Xxxx., Xxx. 000
------------------------------- -------------
Xxxxxxx X. Xxxxxxx Xxxx Xxxx Xxxxx, XX 00000
Managing Member
BATINOVICH TRUST DATED 4/13/90
By: /s/Xxxx Xxxxx Xxxxxxxxxx 5/17/99 Address: 0000 Xxxx Xxxxx Xxxxxx
------------------------------- -----------
Xxxx Xxxxx Xxxxxxxxxx, Trustee Date Xxx Xxxx, XX 00000
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XXXXXXX X. XXXXX TRUST dated 10/10/90
By: /s/Xxxxxxx X. Xxxxx 5/17/99 Address: 1205 Sierra
--------------------------- -------
Xxxxxxx X. Xxxxx, Trustee Date Xxx Xxxx, XX 00000
XXXXXX X. XXXXX TRUST dated 3/14/90
By: /s/Xxxxxx X. Xxxxx 5/17/99 Address: 0000 Xxxxxxxx Xxxxxx
-------------------------- -------
Xxxxxx X. Xxxxx, Trustee Date Xxx Xxxx, XX 00000
XXXXXXX FAMILY 1995 REVOCABLE TRUST
By: /s/Xxxx X. Xxxxxxx 5/13/99 Address: 00000 Xxxxxxxxx Xxxxxx
--------------------- -------
Xxxx X. Xxxxxxx Date Xxxxxx Xxxx, XX 00000
NO REPRESENTATION IS MADE BY XXXXXXX INVESTMENT PROPERTIES, INC. OR ANY OF ITS
AGENTS AS TO THE LEGAL OR TAX EFFECT OR VALIDITY OF ANY PROVISIONS OF THIS
AGREEMENT. A REAL ESTATE BROKER IS QUALIFIED TO GIVE ADVICE ON REAL ESTATE
MATTERS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN ATTORNEY OR TAX
ADVISOR.
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