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EXHIBIT 2.4
AGREEMENT OF SALE
This AGREEMENT OF SALE is made and entered into this 11th day of August,
1997, by and between THE BARCHESTER CORPORATION (the "Seller"), a Connecticut
corporation having its principal office at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxx 00000, and SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP (the
"Purchaser"), a Michigan limited partnership having its principal office at
00000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, or its designee
or assignee.
R E C I T A L S:
A. Seller is the owner of parcels of real property (collectively, the
"Land"): (i) located in the City of Xxxxx Hill Volusia County, Florida,
containing 402 manufactured home sites on approximately 59.8 acres,
commonly known as Xxxxx Forest Estates, as more fully described in Exhibit
"A-1" attached hereto and made a part hereof; and (ii) located in the City
of Daytona Beach, Volusia County, Florida containing 100 manufactured home
sites on approximately 12.6 acres, commonly known as Elmwood Mobile Home
Park, as more fully described in Exhibit "A-2" attached hereto and made a
part hereof. The Land, together in each case with the buildings,
structures, improvements and manufactured home sites on, above or below the
Land, and all fixtures attached to, a part of or used in connection with
the improvements, structures, buildings and manufactured home sites, and
the parking, facilities, walkways, ramps and other appurtenances relating
to the Land, excluding manufactured or mobile homes and movable accessions
thereto (collectively the "Improvements").
B. Seller is the owner of the personal property (collectively the
"Personal Property") described in Exhibit "B" attached hereto and made a
part hereof, which is located at or useable in connection with the
ownership or operation of the Land and Improvements.
C. The Land, the Improvements, and the Personal Property, together with
all of Seller's right, title and interest in and to all transferable
licenses, permits and franchises issued with respect to the use, occupancy,
maintenance or operation of the Land and Improvements, all right, title and
interest, if any, of Seller in and to any land lying in the bed of any
street, road or avenue, open or proposed, in front of or adjoining the Land
to the center line thereof, all easements appurtenant to the Land,
including, but not limited to, privileges or rights of way over adjoining
premises inuring to the benefit of the Land, or the fee owner thereof, and
all rights of use, air, mineral and subsurface rights, servitudes,
licenses, tenements, hereditaments and appurtenances now or hereafter
belonging to the foregoing are hereinafter sometimes collectively referred
to as the "Project". Individually, the Project located in Holly Hill,
Florida is sometime referred to herein as the "Xxxxx Forest Project" and
the Project located in Daytona Beach, Florida is sometime referred to
herein as the "Elmwood Project."
D. Seller desires to sell the Project to Purchaser, and Purchaser
desires to purchase the Project from Seller, all upon the terms and subject
to the conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises hereinafter set forth, and the purchase monies to be paid by Purchaser
to Seller, IT IS HEREBY AGREED:
1. AGREEMENT TO SELL.
1.1 Seller hereby agrees to sell the Project to Purchaser, and
Purchaser hereby
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agrees to purchase the Project from Seller, in accordance with the terms
and subject to the conditions hereinafter set forth.
2. PURCHASE PRICE AND PAYMENT THEREOF.
2.1 The aggregate purchase price (the "Purchase Price") for the
Project is the sum of Eleven Million Five Hundred Thousand and 00/100
Dollars ($11,500,000.00). The Purchase Price, adjusted as provided in this
Agreement, shall be payable by Purchaser to Seller on the Closing Date (as
herein defined) by certified or cashier's check or wire transfer of
immediately available funds to the agent or institution designated by
Seller.
2.2 The Purchase Price shall be allocated among the Land,
Improvements and Personal Property in accordance with the schedule attached
hereto as Exhibit "C" and made a part hereof by this reference.
3. PERMITTED EXCEPTIONS.
3.1 The Project shall be sold and conveyed to Purchaser subject
only to the following matters (the "Permitted Exceptions"):
(a) Those liens, encumbrances, easements and other matters set
forth on Schedule B-2 of the Commitment to be delivered pursuant to Section
4.1 hereof which the Purchaser does not designate as Title Defects pursuant
to Section 5.1 hereof;
(b) The rights of parties in occupancy of all or any portion of
the Land and Improvements under leases, subleases or other written
agreements, to the extent set forth and described in the current Rent Roll
(the "Rent Roll") attached hereto as Exhibit "D", as the same shall be
updated to the Closing Date; and
(c) All presently existing and future liens for unpaid real
estate taxes, assessments for public improvements installed after the
Closing Date, and water and sewer charges and rents, subject to
adjustment thereof as hereinafter provided.
4. EVIDENCE OF TITLE; SURVEY; LIEN SEARCHES.
4.1 Within ten (10) days after the date hereof, Seller shall furnish
Purchaser with a commitment (the "Commitment") for an A L.T.A. Form B
Owner's Policy of Title Insurance, without standard exceptions, issued by
American Pioneer Title Insurance Company, or a nationally recognized title
insurance company reasonably acceptable to Purchaser (the "Title Company"),
along with copies of all instruments described in Schedule B of the
Commitment, in the amount of the Purchase Price, and showing marketable and
insurable title in the Seller subject only to: (a) the Permitted
Exceptions; and (b) such other title exceptions pertaining to liens or
encumbrances of a definite or ascertainable amount which may be removed by
the payment of money at the Closing, and which the Seller has the right to
remove and does remove prior to Closing (the "Removable Liens"). At
Closing, the Seller shall cause to be provided to Purchaser, at Seller's
expense, a policy of title insurance issued pursuant to the Commitment,
insuring the interest in the Project being acquired by Purchaser without
the "standard exceptions", other than taxes for the year of Closing
which are not yet due and which should be prorated at Closing, and
containing such additional endorsements as Purchaser shall reasonably
request.
4.2 Seller shall furnish Purchaser with a current survey (the
"Survey") of the
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Project prepared by a licensed surveyor or engineer approved by Purchaser,
certified to the Purchaser, and the Title Company, using the form attached
as Exhibit "D" hereto by 5 p.m. EDT on August 21, 1997. The Survey shall
show the legal description of the Land, the total acreage of each parcel
comprising the Land, all improvements which are described as part of the
Project other than sidewalks located thereon, all boundaries, courses and
dimensions, easements and rights of way (including any recording
references), and visible utility lines and connections. The Survey shall be
sufficient for removal of the standard survey exception from the policy of
title insurance to be issued pursuant to the Commitment and shall not
reveal any of the following: (i) encroachments on the Project or any
portion thereof from any adjacent property, (ii) the encroachment of the
Project, or any portion thereof, on any adjacent property, or (iii) any
violation by any portion of the Project of any recorded building lines,
restrictive covenants or easements affecting the Project. Seller shall also
deliver to Purchaser, along with the Survey, a detailed site plan for the
Xxxxx Forest Project and for the Elmwood Project showing internal site
boundaries and the location of streets, and construction plans for phases
3, 4 and 6 of the Xxxxx Forest Project showing, inter alia, the location of
underground utilities.
4.3 Prior to the Closing Date, the Seller shall deliver to Purchaser
Uniform Commercial Code financing statement and tax lien searches with
respect to the Seller from the State of Florida and the County of Volusia,
Florida, which are the State and County of Seller's principal office, dated
within ten (10) days prior to the Closing, showing no security interests,
pledges, liens, claims or encumbrances in or affecting the Personal
Property, except for Removable Liens.
5. TITLE OBJECTIONS.
5.1 If the Commitment or Survey discloses exceptions, other than
Removable Liens, which are not acceptable to Purchaser, in its sole
discretion, Purchaser shall notify Seller in writing of the exceptions to
which Purchaser objects (the "Title Defects"). Purchaser shall notify
Seller of the Title Defects within seven (7) days after receipt of the last
of (a) the Commitment, (b) the Survey, and (c) copies of the documents
listed in the Commitment as exceptions, other than Removable Liens. Title
Defects shall not include Removable Liens. Seller agrees to use its best
efforts to cure any such Title Defects. If Purchaser does not make timely
objection to a Commitment or Survey exception prior to the expiration of
the Investigation Period, such exception shall become a Permitted
Exception. If Seller fails to endorse the Commitment to remove a Title
Defect that is not a Permitted Exception within the time permitted,
Purchaser shall have the right to (a) terminate this Agreement based on
such failure; or (b) extend for up to ninety (90) days the period for
Seller to cure such Title Defects, and if such Title Defects are not
deleted during the extended period, Purchaser may then exercise its rights
under subparagraph (a) above. If Purchaser terminates this Agreement based
solely on Title Defects objected to during the time permitted in this
paragraph 5.1, which Seller fails to cure within the time permitted,
Purchaser shall be entitled to return of the Deposit, along with any
accrued interest thereon.
6. INFORMATION AND ACCESS TO PROJECT.
6.1 Seller has provided to Purchaser all that information listed on
Exhibit "E", attached hereto. Purchaser shall have until the 5:00 p.m.
EDT on Wednesday, August 20, 1997 to confirm receipt of the information
listed on Exhibit "E" and to provide Seller with a list of all other
information Purchaser may require. Seller shall provide such information,
in Seller's possession, within five (5) days of Seller's receipt of notice
by Purchaser.
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6.2 At all reasonable times from and after the date hereof, Seller
shall afford Purchaser and its representatives full and free access to the
Project, including, but not limited to, the right to conduct environmental,
soil, engineering and other tests and to inspect the mechanical, plumbing
and utility systems located at the Project, together with all other aspects
of the Project; provided, however, if Purchaser or its representatives
enter upon the Project pursuant to the terms hereof, Purchaser agrees to
indemnify and hold Seller harmless from all damage caused to any person or
the Project as a result of such entry and the negligent acts or omissions
of Purchaser or its representatives. Any general disclaimer of liability
herein shall not constitute a discharge of Purchaser's liability for damage
or injury in accordance with this paragraph.
6.3 Purchaser shall have the right, at its expense, to cause its
accountant to prepare audited financial statements of the Seller and its
operations at the Project for the calendar years ended December 31, 1994,
December 31, 1995 and December 31, 1996, and for the period from January 1,
1997 through the calendar month preceding the Closing Date, and Seller
shall cooperate and assist it all respects with the preparation of the
audited financial statements. Seller shall furnish to Purchaser and its
accountants all financial and other information in its possession or
control to enable such accountants to prepare audited financial statements
in conformity with Regulation S-X promulgated by the Securities and
Exchange Commission ("SEC") and any registration statement, report or
disclosure statement filed with, and any rule issued by, the SEC.
Purchaser shall not be entitled to base termination of this Agreement on
any information found in such audit unless such information is discovered
during the Investigation Period and notice of such information is delivered
by Purchaser to Seller during the Investigation Period. Any such audit
shall not delay the Closing of this transaction. Seller also shall provide
a signed representation letter as prescribed by generally accepted auditing
standards as promulgated by the Auditing Standards Divisions of the
American Institute of Public Accountants which representation letter is
required to enable an independent public accountant to render an opinion on
such financial statements. The providing or obtaining of such
representation letter shall not be a condition precedent to Closing and
shall not delay the Closing herein.
6.4 The Seller shall furnish to Purchaser, at its sole cost and
expense, within seven (7) days after the date hereof, a "Phase 1"
environmental audit (the "Environmental Audit") of the Project, including
the Land and Improvements, addressed to the Purchaser, conducted by
EnviroAssessemnts, Inc., reflecting that the Project is free of and does
not contain any Hazardous Materials, and otherwise in form and content
acceptable to Purchaser, in its sole discretion. If the Environmental Audit
discloses any condition which requires further review or investigation, the
Purchaser may request that a "Phase 2" environmental audit of the Project
in form and content acceptable to the Purchaser, in its sole discretion, be
performed. Such request shall be made to Seller in writing within five (5)
business days from Purchaser's receipt of the Phase 1 audit. The cost of
the Phase 2 environmental audit, if requested by Purchaser, shall be borne
equally by Seller and Purchaser if this transaction is closed or if the
transaction fails to close because of Purchaser's default. Otherwise, the
cost shall be borne by Seller. If Purchaser requires a Phase 2
environmental audit, Purchaser shall have the right to terminate this
Agreement based on environmental conditions disclosed and/or curative
action recommended by the Phase 2 environmental audit by giving notice of
termination in writing to Seller within five (5) business days after
receipt of the Phase 2 environmental audit, in which case Purchaser shall
be entitled to a full refund of the Deposit and any interest earned
thereon. If a Phase 2 environmental audit is obtained, the Closing Date
shall be extended for fifteen (15) days from the completion of the Phase 2
environmental audit to provide Purchaser with sufficient time to receive,
review and approve the Phase 2 environmental audit. If a Phase 2
environmental audit cannot be obtained within thirty (30) days of the
expiration of the Investigation Period, Seller shall have the right to
terminate this Agreement.
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7. ASSIGNMENT OF LEASES, PROJECT CONTRACTS AND INTANGIBLES.
7.1 Seller shall assign to Purchaser on the Closing Date all of
Seller's rights in the tenant leasehold interests as described in the
Prospectus for each respective Project, said Prospectus as acknowledged by
each of the tenants (the "Tenant Leasehold Interests") and the lease for
the single family home located on Lot 99 in the Elmwood Project (the
"Elmwood Lease"). Seller shall indemnify, defend and hold harmless
Purchaser from and against any loss or damage suffered by Purchaser as the
result of any breach of the lessor's obligations under the Tenant Leasehold
Interests or the Elmwood Lease which has occurred or shall have occurred
prior to the Closing Date. Purchaser shall indemnify, defend and hold
harmless Seller from and against any loss or damage suffered by Seller as
the result of any breach of the lessor's obligations under the Tenant
Leasehold Interests or the Elmwood Lease which occurs subsequent to the
Closing Date.
7.2 All Project Contracts which Purchaser, in its sole
discretion, has elected to accept shall be assigned by Seller to Purchaser
on the Closing Date. Purchaser shall notify Seller prior to the expiration
of the Investigation Period of those Project Contracts which Purchaser will
not assume. Any contract which Purchaser fails to inform Seller that it
will not assume prior to the expiration of the Investigation Period shall
be assigned to Purchaser on the Closing Date. Seller shall indemnify,
defend and hold harmless Purchaser from and against any loss or damage
suffered by Purchaser as a result of any breach of Seller's obligations
under the Project Contracts which occurred prior to the Closing Date,
whether or not Purchaser has elected to take an assignment of the Project
Contract, or as a result of the Seller's termination of any Project
Contract which is not assigned to Purchaser. Purchaser shall indemnify,
defend and hold harmless Seller from and against any loss or damage
suffered by Seller as a result of any breach of Purchaser's obligations
under the Project Contracts assigned to Purchaser at its request which may
occur subsequent to the Closing Date.
7.3 On the Closing Date, Seller shall assign to Purchaser all of
its right, title and interest in and to: (a) all licenses, permits and
franchises then held by Seller for the Project which may be lawfully
assigned and which may be necessary or desirable, in Purchaser's opinion,
to operate the Project; (b) warranties and guarantees, if any, from
manufacturers, suppliers, or installers pertaining to the project; (c) the
names "Xxxxx Forest Estates" and "Elmwood Mobile Home Park" and all
variations thereof; (d) the telephone number(s) for all of Seller's
telephones installed at the Project; (e) all architectural drawings, plans
and specifications and other documents in Seller's possession relating to
the development of the Project; and (g) all business, operating and
maintenance records, reports, notices, and other information concerning the
Project. Seller shall have the right, during regular business hours, of
access to and the right to copy all business, operating and maintenance
records, reports, notices and other information concerning the Project.
8. ADJUSTMENTS AND PRORATIONS.
8.1 The following adjustments and prorations shall be made at the
Closing between Seller and Purchaser computed to, but not including,
the Closing Date.
(a) Real estate taxes and personal property taxes which are a
lien upon or levied against any portion of the Project on or prior to the
Closing Date, and all special assessments levied prior to the Closing Date
shall be paid by Seller. All current real estate taxes
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and personal property taxes levied against any portion of the Project shall
be prorated and adjusted between the parties in accordance with local
custom and practice in Volusia County, Florida, as mutually agreed to by
Seller and Purchaser and shall be paid by Seller or Purchaser, as the case
may be. If the tax bills for the year of Closing have not been issued by
the Closing Date, Seller and Purchaser agree to use 105% of the amount of
the taxes for the year immediately preceding the Closing for the purpose of
computing the prorations under this Section 7.1(a).
(b) The amount of all unpaid water and other utility bills,
and of all other expenses incurred with respect to the Project, relating
to the period prior to the Closing Date, shall be paid by Seller.
(c) Charges under Project Contracts which are assigned to
Purchaser at Purchaser's request shall be paid by Seller, to the extent
attributable to the period prior to the Closing Date, and shall be paid by
Purchaser, to the extent attributable to the period after the Closing Date,
and all charges due under Project Contracts not assigned to Purchaser shall
be paid by Seller.
(d) All rental and other revenues collected by the Seller up to
the Closing Date which are allocable to the period subsequent to the
Closing Date shall be paid by Seller to Purchaser. To the extent Purchaser
collects, within ninety (90) days after the Closing, any rental or revenues
allocable to the period prior to the Closing Date, the Purchaser shall pay
the same to Seller; provided, however, Purchaser is assuming no obligation
whatsoever for the collection of such rentals or revenues and all rentals
and revenues collected subsequent to the Closing Date shall always, in the
first instance, be applied first to the most current rentals and revenues,
if any, then due under the Tenant Leasehold Interests, the Elmwood Lease or
otherwise. Purchaser shall have no obligation to remit to Seller any such
delinquent rents collected later than ninety (90) days after the Closing.
In addition, at Closing, Purchaser shall hold back from the Purchase Price
the amount of Three Hundred Sixty-Nine Thousand and 00/100 Dollars
($369,000.00) in order to establish a rent guaranty fund, which will be
applied by Purchaser on a monthly basis as follows:
DATE AMOUNT
October 1, 1997 - December 31, 1998 $15,000.00 per month
January 1, 1999 - December 31, 1999 $9,000.00 per month
January 1, 2000 - December 31, 2000 $3,000.00 per month
The rent guaranty fund shall be the absolute and unequivocal property of
Purchaser, and neither Seller, its creditors, its successors or assigns
shall have any interest in such fund.
(e) Seller shall pay documentary stamp tax on the deed transfer
ring the real property and shall pay any transfer taxes on transfer of
tangible property customarily borne by sellers.
8.2 If within the six (6) months after the closing either Seller or
Purchaser discovers any inaccuracies or errors in the prorations or
adjustments done at Closing, Purchaser or Seller shall notify the other
party of such inaccuracy or error, and Seller and Purchaser shall take all
action and pay all sums necessary so that the said prorations and
adjustments shall be in accordance with the terms of this Agreement, and
the obligations of either party to pay any such amount shall survive the
Closing Date.
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9. SELLER'S WARRANTIES.
9.1 The Seller represents and warrants to the Purchaser as of the
date hereof, and as of the Closing Date, the following with the
understanding that each of the representations and warranties are material
and have been relied on by the Purchaser in connection herewith.
(a) True, correct and complete copies of the Prospectus,
including all amendments and documents relating thereto, have been or will
be delivered to Purchaser pursuant to Section 6.1(a) hereof; the Rent Roll
attached hereto as Exhibit "F", as updated to the Closing Date, is and will
be an accurate and complete rent roll describing each of Tenant Leasehold
Interests and the Elmwood Lease, including the name of the tenant, the home
site occupied by the tenant, monthly rent, delinquencies in rent, deposits
paid and any prepaid rent or credits due any tenant; except as set forth in
the Rent Roll, no tenant is in default and no events have occurred which,
with notice or the passage of time, or both, would constitute such a
default; the lessor has performed all of its obligations under the
Prospectus, the Tenant Leasehold Interests and the Elmwood Lease; and
neither the Prospectus, any Tenant Leasehold Interest nor the Elmwood Lease
has been modified nor have any concessions been made with respect thereto.
(b) Seller has not received any notices of, and Seller has no
knowledge of any existing facts or conditions which may result in the
issuance of, any violations of any building, zoning, safety, fire,
environmental, health or other codes, laws, ordinances or regulations with
respect to the Project, the appurtenances thereto or the maintenance,
repair or operation thereof, which will not be cured by the Closing Date,
at Seller's expense.
(c) Seller has not received notice of and has no knowledge of
any existing, pending or threatened litigation or condemnation proceedings
or other court, administrative or extra-judicial proceedings with respect
to or affecting the Project or any part thereof.
(d) Seller has no knowledge of any assessments, charges,
paybacks, or obligations requiring payment of any nature or description
against the Project which remain unpaid, including, but not limited to,
those for sewer, water or other utility lines or mains, sidewalks, streets
or curbs. Seller has no knowledge of any public improvements having been
ordered, threatened, announced or contemplated with respect to the Project
which have not heretofore been completed, assessed and paid for.
(e) True and complete copies of all Project Contracts and the
Prospectus for the Project, if applicable, and all amendments thereto have
been delivered to Purchaser pursuant to Section 6.1 above. All Project
Contracts are in full force and effect and not in default; all Project
Contracts are listed in Exhibit "G" attached hereto; and except as
described in Exhibit "G", there are no Project Contracts in force with
respect to the Project which are not subject to cancellation upon not more
than thirty (30) days notice without premium or penalty. The Prospectus for
the Project, as amended, has been approved in accordance with the
requirements of the Florida Mobile Home Act.
(f) Seller is the lawful owner of the Project and holds
insurable and marketable title to the Project, free and clear of all liens
and encumbrances other than the Permitted Exceptions and Removable Liens.
The Seller has and will have on the Closing Date the power and authority to
sell the Project to Purchaser and perform its obligations in accordance
with the terms and conditions of this Agreement, and each person who
executes this Agreement and all other instruments and documents in
connection herewith on behalf of Seller, has or will
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have due power and authority to so act. On or before the Closing Date, the
Seller will have complied with all applicable statutes, laws, ordinances
and regulations of every kind or nature, in order to effectively convey and
transfer all of Seller's right, title and interest in and to the Project to
Purchaser in the condition herein required, including, without limitation,
the provisions of Section 723.071 of the Florida Statutes.
(g) Since the date on which the Seller commenced doing business at
the Project, it has been insured with respect to risks normally insured
against, and in amounts adequate to safeguard the Project. Exhibit "H"
attached hereto lists all insurance currently maintained for or with
respect to the Project, including types of coverage, policy numbers,
insurers, premiums, deductibles and limits of coverage.
(h) Neither this Agreement nor anything provided to be done herein
by Seller, including, without limitation, the conveyance of all of the
Seller's right, title and interest in and to the Project as herein
contemplated, violates or will violate the Seller's governing documents or
any contract, agreement or instrument to which the Seller is a party or
bound and which affects the Project.
(i) Seller has not contracted for the furnishing of labor or
materials to the Project which will not be paid for in full prior to the
Closing Date, and if any claim is made by any party for the payment of any
amount due for the furnishing of labor and/or materials to the Project or
Seller prior to the Closing Date and a lien is filed against the Project as
a result of furnishing such materials and/or labor, Seller will indemnify
Purchaser and discharge the lien or exonerate the Project therefrom.
(j) All utility services, including water, sanitary sewer, gas,
electric, telephone and cable television facilities, are available to the
Project and each home site in sufficient quantities to adequately service
the Project at full occupancy; and to the Seller's knowledge, there are no
existing, pending or threatened plans, proposals or conditions which could
cause the curtailment of any such utility service. No utility lines lie
under any home or improvement in the Project.
(k) All construction in connection with the Elmwood Project,
subsequent to 1985, and the Xxxxx Forest Project, subsequent to 1989 and
specifically Phases 3, 4 and 6, was performed in conformity with all
regulations, laws and ordinances applicable at the time the Project was
constructed, all Permitted Exceptions, and all development orders and other
requirements imposed by governmental authorities. To the best of
Seller's knowledge, the Elmwood Project, prior to 1985, and the Xxxxx
Forest Project, prior to 1989, were constructed in conformity with all
regulations, laws and ordinances applicable at the time. To the Seller's
knowledge: (i) there are no existing maintenance problems with respect to
mechanical, electrical, plumbing, utility and other systems necessary for
the operation of the Project, including, without limitation, all
underground utility lines, water xxxxx and roads; (ii) all such systems are
in good working condition and are suitable for the operation of the
Project; and (iii) there are no structural or physical defects in and to
the Project, and there are no conditions currently existing on, in, under
or around property adjacent to or surrounding the Project, which materially
adversely affect, or could materially adversely affect, the Project or the
operation thereof.
(l) The sole employee of the Seller with respect to the Project is
Xxxxxx X. Xxxxx. Attached hereto as Exhibit "I" is the job description,
term of employment, average hours worked per week, current pay rate,
description of all benefits provided this employee. This employee is
terminable at will.
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(m) The Xxxxx Forest Project consists of 402 manufactured home
sites, located on approximately 59.8 acres of Land, and the improvements,
amenities and recreational facilities listed in Exhibit "J-1" attached
hereto and made a part hereof. As of the date hereof, zero (0) manufactured
home sites within the Xxxxx Forest Project are vacant, and for the calendar
years 1994 and 1995, the average occupancy rates at the Project were more
than 99%. The Elmwood Project consists of 100 manufactured home sites,
located on approximately 12.6 acres of Land, and the improvements,
amenities and recreational facilities listed in Exhibit "J-2" attached
hereto and made a part hereof. As of the date hereof, zero (0) manufactured
home sites within the Elmwood Project are vacant, and for the calendar
years 1994 and 1995, the average occupancy rates at the Project were more
than 99%. All unoccupied manufactured home sites which exist at the date of
Closing, if any, will be in leasable condition without it being necessary
to make any further improvements to permit a tenant to take possession of,
and install a manufactured home on, such home site in accordance with the
Seller's standard form lease and the rules and regulations applicable to
the Project.
(n) To the Seller's knowledge, Exhibit "K" attached hereto
contains a complete and accurate list of, and copies of, all licenses,
certificates, permits and authorizations from any governmental authority of
any kind which are required to operate, use and maintain the Project as a
manufactured home park; and all such licenses, certificates, permits and
authorizations have been issued and are in full force and effect and on the
Closing Date shall, to the extent legally assignable or transferable, be
transferred or assigned to Purchaser. Seller shall take all steps and
execute all applications and instruments reasonably necessary to achieve
such transfer or assignment. Purchaser shall pay all transfer fees
required, if any.
(o) Exhibit "B" attached hereto contains a true and complete list
of all Personal Property used in the operation of the Project; such
Personal Property is in good working condition; and the Seller will not
sell, transfer, remove or dispose of any item of Personal Property from the
Project on or prior to the Closing Date, unless such item is replaced with
a similar item of no lesser quality or value.
(p) Seller has not, and prior to the Closing Date will not have,
discharged, released, generated, treated, stored, disposed of or deposited
in, on or under the Project, and to the best of the Seller's knowledge, the
Project is free of and does not contain, any "toxic or hazardous
substance", asbestos, urea formaldehyde insulation, PCBs, radioactive
material, flammable explosives, underground storage tanks, or any other
hazardous or contaminated substance (collectively, the "Hazardous
Materials") prohibited, limited or regulated under the Comprehensive
Environmental Response Compensation and Liability Act, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation Act,
the Toxic Substance Control Act, the Federal Insecticide, Fungicide and
Rodenticide Act, or under any other applicable federal, state or local
statutes, regulations or ordinances (collectively the "Environmental
Laws"), and there are no substances or conditions in or on the Project
which may support a claim or cause of action under any of the Environmental
Laws. The Seller has no knowledge of any suit, action or other legal
proceeding arising out of or related to any Environmental Laws with
respect to the Project which is pending or threatened before any court,
agency or government authority, and Seller has not received any notice that
the Project is in violation of the Environmental Laws.
(q) Seller has furnished or will furnish to Purchaser within five
(5) days of the complete execution hereof operating statements from 9/1/95
to 7/28/97 (the "Operating Statements"). The Operating Statements furnished
and to be furnished are true,
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correct and complete in all respects, present fairly and accurately the
financial position of the Seller and the operation of the Project as at
such dates and the results of its operations and earnings for the periods
indicated thereon. Seller shall furnish to Purchaser within five (5) days
of the complete execution hereof financial statements for The Barchester
Corporation for the 12 month periods ending December 31, 1994; December 31,
1995; and December 31, 1996 (the "Financial Statements").
(r) Seller has delivered to Purchaser true, correct and complete
copies of the information and material referenced in Section 6.1 hereof.
Nothing contained in this Agreement, the Exhibits attached hereto or
the information and material delivered or to be delivered to Purchaser
pursuant to the terms hereof, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
9.2 The provisions of Section 9.1 and all representations and
warranties contained therein shall be true as of the Closing Date and shall
survive the closing of the transaction contemplated herein and the
conveyance of the Project to Purchaser. The investigation by Purchaser
and its employees, agents and representatives, of the financial, physical
and other aspects of the Project shall not negate or diminish the
representations and warranties contained herein, except that, if Purchaser,
its employees, agents or representatives, obtain actual knowledge of any
information during the investigation which is contrary to any of Seller's
representations or warranties herein, Seller's representations and
warranties as to that information shall be waived and shall not be relied
upon by Purchaser.
10. CONDITIONS.
10.1 Purchaser's obligation to consummate the purchase of the
Project is expressly conditioned upon the following, each of which
constitutes a condition precedent to Purchaser's obligation to close, if
not performed by or before the Closing Date (unless a different time for
performance is expressly provided herein), shall permit Purchaser, at its
sole option, to declare this Agreement null and void and of no further
force and effect by written notice to Seller, whereupon the Deposit shall
be returned immediately to Purchaser, and neither the Seller nor the
Purchaser shall have any further obligations hereunder to the other
(provided that Purchaser shall have the right to waive any one or all of
said conditions).
(a) On the Closing Date, title to the Project shall be in the
condition required herein, and the Title Company shall be in a position to
issue the requisite policy of title insurance pursuant to the Commitment.
(b) Seller's representations, warranties and agreements
contained herein are and shall be true and correct as of the date hereof
and as of the Closing Date in all material respects.
(c) From and after the date hereof to the Closing Date there
shall have been no material adverse change in or to the Project or the
business conducted thereon.
(d) Seller shall have complied with Section 723.071 of the
Florida Statutes and provided Purchaser with reasonable evidence of such
compliance, including, without limitation, certified copies of all notices
of sale furnished to the Project's homeowners association, and the Seller
shall have executed and recorded an Affidavit of Compliance pursuant to
Section 723.072 of the Florida Statutes. Issuance of the Policy without
the exception for
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tenants' right to purchase under Section 723.071 shall constitute
conclusive proof of compliance for the purposes of this subparagraph.
(e) There shall have been no change in the environmental
condition of the Project subsequent to the completion of a Phase 1
environmental audit with no request for a Phase 2 environmental audit, or
completion of a Phase 2 environmental audit and any curative action
pursuant thereto.
11. PERIOD FOR INVESTIGATION.
11.1 Commencing on the date hereof, the Purchaser shall have a
period of thirty (30) days (the "Investigation Period") to inspect and
investigate all aspects of the Project, including, without limitation, the
physical condition of the Project, all items of income and expense arising
from Seller's ownership and operation of the Project, and all documents
relating thereto. In the event Seller has failed to deliver or make
available to Purchaser the information and material required by Section
6.1, the Investigation Period shall be extended for a period of time equal
to the number of days from the required delivery date of each such item to
the actual date of delivery of all such items. At any time prior to the
expiration of the Investigation Period, as the same may have been extended
pursuant to the provisions of this Section 11.1, and for any reason
whatsoever, Purchaser may, at its option and in its sole and absolute
discretion, terminate this Agreement.
11.2 Purchaser shall notify Seller in writing prior to the
expiration of the Investigation Period, as the same may be extended, that
it has elected to terminate this Agreement as provided in Section 11.1
above (the "Termination Notice"). If Purchaser does not deliver the
Termination Notice to Seller prior to the expiration of the Investigation
Period, as the same may be extended, Purchaser, without further action,
shall be deemed to have waived its right to terminate this Agreement.
12. OPERATION OF PROJECT.
12.1 From and after the date hereof to the Closing Date, Seller
shall: (a) continue to maintain, operate and conduct business at the
Project in substantially the same manner as prior to the date hereof; (b)
perform all regular and emergency maintenance and repairs with respect to
the Project; (c) keep the Project insured against all usual risks and
will maintain in effect all insurance policies now maintained on the same;
(d) not sell, assign or convey any right, title or interest in any part of
the Project; and (e) not change the operation or status of the Project in
any manner reasonably expected to impair or diminish its value; provided,
however: (i) Seller may grant or extend occupancy to a tenant for a period
not to exceed one year and at a rental rate that is not less than the
present rental for such space within the Project; and (ii) Seller shall at
or prior to the Closing Date furnish Purchaser with written notice of any
new or extended occupancies.
12.2 The Purchaser shall have the right, but not the obligation,
to hire those Seller's employee who worked at the Project, effective as of
the Closing Date. Upon the consummation of the transactions contemplated
herein, such employee will remain an employee of Seller unless expressly
employed by Purchaser, and all accrued compensation and fees due such
employee, including any amount payable or that becomes payable as a result
of the termination of the employee, and any costs and taxes attributable to
such employment, shall be paid by Seller.
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13. DESTRUCTION OF PROJECT.
13.1 In the event any part of the Project shall be damaged or
destroyed prior to the Closing Date, Seller shad notify Purchaser thereof,
which notice shall include a description of the damage and all pertinent
insurance information. If the use or occupancy of the Project is materially
affected by such damage or destruction or the cost to repair such damage or
destruction exceeds Fifty Thousand Dollars ($50,000.00), Purchaser shall
have the right to terminate this Agreement by notifying Seller within
thirty (30) days following the date Purchaser receives notice of such
occurrence, whereupon the Deposit shad be returned immediately to
Purchaser, and Seller and Purchaser shad not have any further obligation
hereunder to the other. If Purchaser does not elect to terminate this
Agreement, or shall fail to notify Seller within the said thirty (30) day
period, on the Closing Date Seller shall assign to Purchaser all of
Seller's right, title and interest in and to the proceeds of the fire and
extended coverage insurance presently carried by or payable to Seller.
14. CONDEMNATION.
14.1 If, prior to the Closing Date, either Seller or Purchaser
receives or obtains notice that any governmental authority having
jurisdiction intends to commence or has commenced proceedings for the
taking of any portion of the Project by the exercise of any power of
condemnation or eminent domain, or notice of any such taking is recorded
among the public records of the State of Florida or Volusia County,
Purchaser shall have the option to terminate this Agreement by notifying
Seller within thirty (30) days following Purchaser's receipt of such
notice, in which event the Deposit shall be returned immediately to
Purchaser, and Seller and Purchaser shall not have any other or further
liability or responsibility hereunder to the other. If Purchaser does not
elect to terminate this Agreement or shall fail to notify Seller within the
thirty (30) day period, Purchaser shall close the transaction as if no such
notice had been received, obtained or recorded or proceedings commenced,
and in such event, any proceeds or awards made in connection with such
taking shall be the sole property of the Purchaser.
15. DEFAULT BY SELLER OR PURCHASER.
15.1 In the event Seller shall fail to perform any material
obligation hereunder, Purchaser may, at Purchaser's option: (i) terminate
this Agreement by written notice delivered to Seller at or prior to the
Closing Date and receive a full refund of the Deposit without thereby
waiving any action for damages resulting from the Seller's breach; or (ii)
obtain specific performance of the terms and conditions hereof.
15.2 In the event Purchaser does not elect to terminate this
Agreement as permitted herein and the conditions precedent to Purchaser's
obligation to purchase the Project have been satisfied or waived by
Purchaser, and thereafter Purchaser fails to purchase the Project on the
Closing Date in accordance with the terms of this Agreement, Seller shall
be entitled to terminate this Agreement and have delivered to Seller, as
liquidated damages, the Deposit, the same being Seller's sole remedy, and
Purchaser shall have no further or other liability hereunder. Seller and
Purchaser agree that in the event of a default by the Purchaser under this
Agreement, the Seller's damages would be difficult or impossible to
ascertain, and the amount of the Deposit represents a reasonable estimate
of such damages. Neither Purchaser, nor any designee, transferee or
assignee of Purchaser, nor any officers, directors, shareholders or
partners, general or limited, of such designee, transferee or assignee,
shall be personally or individually liable with respect to any obligation
under this Agreement, all such personal and individual liability, if any,
being hereby waived by the Seller on its behalf and on behalf of all
persons claiming by, through
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or under the Seller.
16. DEPOSIT.
16.1 Within two (2) business days after the complete execution of
this Agreement, the Purchaser shall deliver the sum of One Hundred Fifty
Thousand and 00/100 Dollars ($150,000.00) (the "Deposit") to Xxxx, Xxxx &
Xxxx, P.A. (the "Escrow Agent"), to be held and disbursed pursuant to the
escrow agreement (the "Escrow Agreement") attached hereto as Exhibit "L",
which shall be executed and delivered by the Seller, Purchaser and Escrow
Agent. All interest earned on the Deposit shall belong to the Purchaser,
subject to the limitation in paragraph 16.2.
16.2 After expiration of the Investigation Period, the Deposit
shall become non-refundable except for Seller's failure to correct any Title
Defect timely raised or upon termination by Purchaser pursuant to paragraph
6.4 above. If the Closing of this transaction does not occur by September
15, 1997, for any reason other than a material breach by Seller or except
as otherwise specifically set forth herein, Seller shall be entitled to the
Deposit and any interest earned thereon.
17. ESCROW AGENT.
17.1 Xxxx, Xxxx & Xxxx, P.A., shall serve as the escrow agent for
this Agreement (the "Escrow Agent").
17.2 The following provisions shall govern the duties and
responsibilities and define the liabilities of the Escrow Agent hereunder:
(a) Escrow Agent shall hold the Deposit pursuant to the
provisions of this Agreement and shall disburse funds only in accordance
with the Agreement or upon written direction of Seller and Purchaser. Upon
request of either party, Escrow Agent shall confirm that the Deposit have
been received and being held by Escrow Agent.
(b) If there is any dispute as to whether the Escrow Agent is
obligated to disburse the Deposit, or as to whom that sum is to be
delivered, the Escrow Agent will not be obligated to make any delivery of
said sum, but in such event may hold said sum until receipt by the Escrow
Agent of an authorization in writing signed by all of the persons having an
interest in such dispute, directing the disposition of said sum, or in the
absence of such authorization, the Escrow Agent may hold the sum until the
final determination of the rights of the parties in an appropriate
proceeding. If such written authorization is not given, or proceedings for
such determination are not begun and diligently continued, the Escrow Agent
may, but is not required to, bring an appropriate action or proceeding for
leave to deposit said sum in court, pending such determination. Upon
notifying all parties concerned of such action, all liability on the part
of Escrow Agent shall fully terminate, except to the extent of accounting
for any items previously delivered out of escrow.
(c) In any suit between Purchaser and Seller wherein Escrow
Agent is made a party because of acting as Escrow Agent hereunder (except
where Escrow Agent shall have willfully or negligently violated its
obligations hereunder) or in any suit wherein Agent interpleads the subject
matter of the escrow, Escrow Agent shall recover reasonable attorney's fees
and costs incurred by it as Escrow Agent only and not in connection with
representing any other party. Such fees and costs to be paid from and out
of the escrowed funds or equivalent and
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charged and awarded as court costs in favor of the prevailing party and
against the non-prevailing party.
17.3 The Agent shall not be liable to any party or person for
misdelivery to Purchaser or Seller of items subject to the escrow, unless
such misdelivery is due to willful breach of the provisions of this
Agreement or negligence of Escrow Agent.
17.4 Seller desires for Xxxx, Xxxx & Xxxx, P.A., to represent
it in any dispute under this Agreement or in any dispute over the Deposit,
and Purchaser consents and agrees that Xxxx, Xxxx & Xxxx'x duties as Escrow
Agent shall not prevent Xxxx, Xxxx & Xxxx, P.A. from representing Seller as
counsel in any dispute arising out of or relating to this Agreement.
18. LIABILITY AND INDEMNIFICATION.
18.1 Purchaser does not and shall not assume any liability for
any claims arising out of the occurrence of any event or the existence of
any condition prior to the Closing Date with respect to the Project.
18.2 From and after the Closing Date, Seller agrees to
indemnify, defend and hold harmless Purchaser, and Purchaser's successors
and assigns, for a period of two (2) years from and after the Closing Date
from and against any and all claims, penalties, damages, liabilities,
actions, causes of action, costs and expenses (including attorneys' fees),
arising out of, as a result of or as a consequence of: (i) any property
damage or injuries to persons, including death, caused by the occurrence of
any event or the existence of any condition at the Project prior to the
Closing Date or in connection with the Seller's use, possession, operation,
repair and maintenance of the Project prior to the Closing Date; (ii) any
breach by Seller of any of its representations, warranties, or obligations
set forth herein or in any other document or instrument delivered by Seller
in connection with the consummation of the transactions contemplated
herein; or (iii) clean up costs and future response costs incurred by
Purchaser under the Environmental Laws arising with respect to or in
connection with a condition which existed or any event which occurred prior
to the Closing Date.
19. CLOSING.
19.1 Subject to the provisions of Section 5.1, the closing
("Closing") of the transaction contemplated herein shall take place within
fifteen (15) days after the expiration of the Investigation Period but in
any event on or before September 15, 1997 (the "Closing Date"). The Closing
Date shall be designated by Purchaser on not less than five (5) days prior
written notice to Seller. The Closing shall be held at the office of
the Title Company, or on or at such other time or place as Purchaser and
Seller shall agree upon. Purchaser acknowledges that Seller intends for the
conveyance of the Property pursuant to this Agreement to be part of a tax
deferred exchange as defined in Section 1031 of the Internal Revenue Code.
Purchaser agrees to cooperate with and provide all documents reasonably
necessary for Seller to achieve a tax deferred exchange in conformity with
Section 1031 and applicable Internal Revenue Code regulations, at Seller's
sole cost and expense provided, in each case, the same do not increase
Purchaser's duties or liabilities hereunder, or decrease Purchaser's rights
hereunder.
19.2 At Closing:
(a) Seller shall execute and deliver a Warranty Deed in
recordable form conveying to Purchaser marketable and insurable title to
the Land and Improvements,
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subject only to the Permitted Exceptions.
(b) Seller shall execute and deliver a Warranty Xxxx of Sale
conveying the Personal Property to Purchaser, free and clear of any liens
or encumbrances other than the Permitted Exceptions, and Seller shall
execute and deliver to Purchaser, in proper form for transfer, the
Certificates of Title pertaining to all vehicles and manufactured homes, if
any, being conveyed to Purchaser hereunder.
(c) Seller shall execute and deliver to Purchaser, in form and
content satisfactory to Purchaser and pursuant to Sections 7.1, 7.2 and
7.3 hereof, an Assignment, transferring to Purchaser all of Seller's right,
title and interest in and to: (i) all Tenant Leasehold Interests and the
Elmwood Lease, and (ii) the Project Contracts which Purchaser has elected
to have assigned.
(d) Seller shall cause the Commitment referred to in paragraph
4.1 hereof to be recertified and updated to the Closing Date, and shall
cause the policy of title insurance to be issued to Purchaser pursuant to
such updated Commitment, at Seller's sole cost.
(e) Purchaser shall deliver to Seller the Purchase Price
adjusted as provided in this Agreement, by certified or cashier's check or
wire transfer of immediately available funds to Seller's designated
financial institution.
(f) Seller shall deliver to Purchaser a certificate confirming
the truth and accuracy of Seller's representations and warranties
hereunder, and the Rent Roll, updated to the Closing Date, and Prospectus
for the Project then in effect, shall be certified as true and correct in
all respects.
(g) Seller and Purchaser shall execute and cause to be
delivered to tenants under the Prospectus and all other interested parties
written notice of the sale of the Project to Purchaser together with such
other information or instructions as Purchaser shall deem appropriate.
(h) Seller shall deliver to Purchaser originals of: (i) the
Tenant Leases, including all amendments thereto and modifications thereof;
(ii) all Project Contracts assigned to Purchaser; (iii) all architectural
plans and specifications and other documents in Seller's possession
pertaining to the development of the Project; and (iv) copies of all
collection, expense and business records and such other documentation
reasonably necessary for Purchaser to continue the operation of the
Project.
(i) Seller shall deliver to Purchaser certified copies of
resolutions of the shareholders and directors of the Seller, authorizing
and approving the transaction contemplated by this Agreement, and
authorizing and directing the execution and delivery of this
Agreement and an documents and instruments to be executed and delivered by
the Seller pursuant to the terms hereof, certified by the authorized
secretary of Seller as being true and correct, together with an incumbency
certificate from the secretary, certifying as to the officers of Seller who
have executed documents in connection with the transactions contemplated
herein.
(j) Seller shall deliver to Purchaser an affidavit, in form
acceptable to Purchaser, executed by the Seller, certifying to facts
showing that the transaction is subject to tax under the Foreign Investment
and Real Property Tax Act of 1980.
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(k) Purchaser shall deliver to Seller certificates or such other
instruments reasonably necessary to evidence that the execution and
delivery of this Agreement and all documents to be executed and delivered
by Purchaser hereunder, have been authorized by Purchaser and that an
persons or entities who have executed documents on behalf of Purchaser in
connection with the transaction have due authority to act on behalf of the
Purchaser.
(l) Seller shall execute and deliver to Purchaser a
discontinuation of any assumed name certificate whereby Seller has
reserved the right to conduct business under the names "Xxxxx Forest
Estates" or "Elmwood Mobile Home Park" or any variation thereof and, if
necessary, in order for Purchaser to use the name "Xxxxx Forest Estates"
and "Elmwood Mobile Home Park" Seller shall change its name.
(m) The Seller and Purchaser shall each deliver to the other
such other documents or instruments as shall reasonably be required by
such party, its counsel or the Title Company to consummate the
transaction contemplated herein and/or to cause the issuance of the policy
of title insurance which, in all events, shall not increase such party's
duties or liability hereunder or decrease such party's rights hereunder.
20. COSTS.
20.1 Purchaser and Seller shall each be responsible for their
own counsel and accountants' fees and travel expenses. Seller shall pay
documentary stamp tax on the deed, intangible and transfer taxes due on the
conveyance of the Project to Purchaser, the title insurance premium for the
Purchaser's policy of title insurance, the cost of the Survey and the Phase
1 Environmental Audit, and one-half the cost of a Phase 2 environmental
audit, if required. Purchaser shall pay recording fees of the deed, and
one-half the cost of a Phase 2 environmental audit, if required. Escrow
fees shall be borne equally by Seller and Purchaser, other than those
attributable to Seller's tax free exchange, which shall be borne entirely
by Seller.
21. BROKERS.
21.1 Purchaser and Seller represent and warrant to the other
that they have not had any direct or indirect dealings with any real estate
brokers, salesmen or agents in connection with the Project, or the
transactions contemplated herein. In consideration of said warranty,
Purchaser agrees with Seller that it will pay, and will defend anal
hold Seller harmless from and against any and all finder's and/or broker's
commissions due or claimed to be due on account of the transactions
contemplated herein and arising out of contracts made by Purchaser, and
Seller agrees with Purchaser that it will pay, and will defend and hold
Purchaser harmless from and against any and all finder's and/or broker's
commissions due or claimed to be due on account of the transactions
contemplated herein and arising out of contracts made by Seller.
22. ASSIGNMENT.
22.1 Purchaser hereby reserves the right, upon notice to
Seller, to assign, no later than September 5, 1997, all of its right, title
and interest in and to this Agreement, and upon such assignment, all terms
and conditions hereof shall apply equally to such assignee as if the
assignee was the original party hereto.
22.2 Seller may, and Purchaser agrees to, assign this Agreement
to the Escrow Agent as a qualified intermediary to effect a Section 1031,
tax deferred exchange. Purchaser shall not
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incur any additional liability nor any transfer taxes in association with
such tax deferred exchange.
23. CONTROLLING LAW.
23.1 This Agreement shall be controlled, construed and enforced in
accordance with the laws of the State of Florida.
24. ENTIRE AGREEMENT.
24.1 This Agreement, the Escrow Agreement, and the Exhibits
attached hereto constitute the entire agreement between the parties hereto
with respect to the transactions herein contemplated, and supersedes all
prior agreements, written or oral, between the parties relating to the
subject matter hereof. Any modification or amendment to this Agreement
shall be effective only if in writing and executed by each of the parties
hereto.
25. NOTICES.
25.1 Any notice from Seller to Purchaser or from Purchaser to
Seller shall be deemed duly served (i) when personally served, (ii) three
(3) business days after deposited in the U.S. certified mail, return
receipt requested, (iii) upon receipt if sent by telephone facsimile with
fax acceptance sheet verifying receipt, or (iv) one (1) business day after
sent via "overnight" courier service, addressed to,,such party as follows:
If to Seller: The Barchester Corporation
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx, President
Fax No. (000) 000-0000
With a copy to: Xxxx Xxxx & Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000-0000
Attn: Xxx X. Xxxx, Xx., Esq.
Fax No. (000) 000-0000
If to Purchaser: Sun Communities, Inc.
00000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxx
Fax No. (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxxx, Esq.
Jaffe, Raitt, Heuer & Xxxxx
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
Either party hereto may change the name and address of the designee to
which notice shall be sent by giving written notice of such change to the
other party hereto as hereinbefore provided.
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26. BINDING.
26.1 The terms hereof shall be binding upon and shall inure to
the benefit of the parties hereto, their successors, transferees and
assigns.
27. PARAGRAPH HEADINGS.
27.1 The captions in this Agreement are inserted for
convenience of reference and in no way define, describe or limit the
scope or intent of this Agreement or any of the provisions hereof.
28. SURVIVAL AND BENEFIT.
28.1 Except as otherwise expressly provided herein, each
agreement, representation or warranty made in this Agreement by or on
behalf of either party, or in any instruments delivered pursuant hereto or
in connection herewith, shall survive the Closing Date and the consummation
of the transactions provided for herein.
28.2 The covenants, agreements and undertakings of each of the
parties hereto are made solely for the benefit of, and may be relied on
only by, the other party hereto, their transferees and assigns, and are not
made for the benefit of, nor may they be relied upon, by any other person
whatsoever.
28.3 This Agreement shall not be construed more strictly
against a party, merely by virtue of the fact that it may have been
prepared by counsel for such party, it being recognized that both Purchaser
and Seller have contributed substantially and materially to the preparation
of this Agreement.
29. COUNTERPARTS.
29.1 This Agreement may be executed in two or more
counterparts,each of which shall be deemed an original, and all of which
together shall be deemed a single agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
shown beneath their respective signatures.
SELLER:
THE BARCHESTER CORPORATION
IN THE PRESENCE OF:
By:___________________________
__________________________ Xxxxxx Xxxxxxxxx, President
Its:_________________________
__________________________
Date:________________________
PURCHASER:
SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP, a Michigan
limited partnership
By: Sun Communities, Inc., its General
Partner
By:___________________________
__________________________ Xxxxxxxx Xxxxxx
Senior Vice President, Acquisition
__________________________
Date:
ESCROW AGENT:
Xxxx, Xxxx & Xxxx, P.A.
By:___________________________
Xxx X. Xxxx, Xx.
for the firm
Date:_________________________
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LIST OF EXHIBITS
EXHIBIT DESCRIPTION
A-1 Legal Description of Land (Xxxxx Forest)
A-2 Legal Description of Land (Elmwood)
B Schedule of Personal Property
C Allocation of Purchase Price
D Survey Certification
E Information Provided to Purchaser
F Rent Roll
G Project Contracts (Section 9.1(e))
H Summary of Insurance (Section 9.1(g))
I Employee Description (Section 9.1(1))
J-1 List of Facilities (Section 9.1(m)) (Xxxxx Forest)
J-2 List of Facilities (Section 9.1(m)) (Elmwood)
K Licenses, Authorizations and Permits (Section 9.1(n))
