EXHIBIT 6.11
OPTION AGREEMENT
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THIS OPTION AGREEMENT (this "Option Agreement"), dated as of December
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18, 1997, is made by and between XXXXXXX PRESERVATION, INC., a Florida
corporation ("Seller"), and BLUE RIBBON COMMUNITIES LIMITED PARTNERSHIP, a
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Delaware limited partnership ("Purchaser").
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W I T N E S S E T H:
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WHEREAS, by deed of even date with this Option Agreement, Seller has
acquired fee simple title to all that parcel of real estate located at the
northwest corner of PGA Boulevard and Prosperity Farms Road in Palm Beach
County, Florida, and commonly known as "The Xxxxxxx Mobile Home Park", which is
more particularly described on Exhibit A attached hereto (the "Land"), together
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with all improvements thereon (with the Land, the "Property");
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WHEREAS, Purchaser and Seller propose to enter into a joint venture
for the ownership of beneficial title to, and the management and operation of,
the Property, conditioned upon Seller raising sufficient investment capital from
owners of mobile or manufactured homes located on the Land by an agreed date;
and
WHEREAS, Purchaser has agreed to provide, or cause to be provided,
interim financing for Seller's acquisition of the Property, conditioned upon,
among other things, Seller granting to Purchaser the option to purchase the
Property set forth in this Option Agreement, exercisable by Purchaser if Seller
fails to raise the aforesaid investment, give notice thereof to Purchaser and
enter into the aforesaid joint venture with Purchaser on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and for Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, the parties hereto hereby agree as follows:
1. Grant of Option. Seller hereby grants to Purchaser, and Purchaser
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hereby accepts the grant of, the exclusive option to purchase the Property, upon
and subject to the terms and conditions set forth in this Agreement and in
Schedule A attached hereto, which Schedule A is incorporated
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herein by reference. Capitalized terms used but not defined herein shall have
the meanings set forth in Schedule A.
2. Consideration. The consideration for the option granted by this
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Option Agreement (the "Option") is described in the recitals hereto.
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3. Option Period.
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(a) The Option may be exercised by notice in writing from
Purchaser to Seller at any time during the period commencing on March 18, 1998
and ending at 5:30 p.m. on April 17, 1998.
(b) Notwithstanding anything in Section 3(a) hereof to the
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contrary, the Option shall expire and become ineffective if, by March 18, 1998,
(i) Seller shall have raised not less than Seven Hundred Fifty Thousand Dollars
($750,000) from the sale of shares in Seller for One Thousand Dollars ($1,000)
each to owners of mobile or manufactured homes located on the Land, effected in
compliance with all applicable Federal and state laws, (ii) Purchaser shall have
received notice in writing from Seller that Seller has achieved the event
described in clause (i) of this Section 3(b), and attaching evidence of such
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event reasonably acceptable to Purchaser, and (iii) Seller and Purchaser shall
have entered into a written partnership agreement creating the joint venture
described in the recitals above.
4. Obligations Pending Closing.
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Effective from the date of this Option Agreement through (i)
March 18, 1998 if Purchaser shall not exercise the Option, or (ii) Closing if
Purchaser shall exercise the Option:
(a) Condition of Property. Seller shall continue to maintain the
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Property in the ordinary course of business, consistent with the maintenance of
the Property over the six (6) month period immediately preceding execution of
this Option Agreement, and Seller shall not cause or permit any material adverse
change in the condition of the Property, changes caused by casualty or the
elements excepted.
(b) Leases. Seller shall not enter into any leases or contracts
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with respect to the Property or any portion thereof without the prior written
consent of Purchaser except tenant leases and service contracts made in the
ordinary course of business and terminable on not more than thirty (30) days'
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notice if writing.
(c) Liens. Seller shall not create or consent to the creation of
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any Liens against the Property other than liens approved by Purchaser in
writing.
Notwithstanding anything in this Section 4 to the contrary, if Seller
enters into a management agreement with respect to the Property with Purchaser
or an affiliate of Purchaser, and for so long as such management agreement shall
be continuing, Seller shall be deemed to have satisfied its obligations under
Sections 4(a) and (b) hereof (other than with respect to any acts affirmatively
taken by Seller in violation of Sections 4(a) or (b)).
5. Condemnation. In the event any Governmental Authority should
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notify Seller, or Seller should become aware, of any permanent or temporary
actual or threatened taking or condemnation of any material portion of the
Property, Seller shall promptly notify Purchaser of the same. Purchaser shall
thereafter be entitled to elect by written notice to Seller, given within
fifteen (15) days after Seller's aforesaid notification to Purchaser, either (i)
to proceed with this Option Agreement, with no change in the terms hereof, in
which event if Purchaser does not terminate this Option Agreement during the
Inspection Period, any and all proceeds of such taking or condemnation shall be
delivered or assigned to Purchaser at Closing, or (ii) to terminate this Option
Agreement, in which event both parties shall be relieved from any further
liabilities or obligations hereunder.
6. Representations.
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a. Seller Representations. Seller represents and warrants to
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Purchaser as follows, all of which representations and warranties are true and
correct as of the date hereof and shall be true and correct as of Closing
hereunder:
i. Seller (A) is a corporation duly formed and validly
existing under the laws of the State of Florida, and has full power and
authority to sell the Property to Purchaser, and (B) has obtained all necessary
consents and approvals as may be required for Seller to enter into and perform
this Option Agreement.
ii. This Option Agreement has been duly authorized,
executed and delivered by Seller and constitutes the
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legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to bankruptcy and insolvency laws and general
principles of equity.
iii. To the best of Seller's knowledge, Seller is the sole
legal and equitable owner of record and in fact of good and marketable fee
simple title to the Property.
iv. Seller is not a "foreign person" as that term is
defined in Section 1445 of the Internal Revenue Code.
v. To the best of Seller's knowledge, no taking by power
of eminent domain or condemnation proceedings have been instituted or are
threatened for the permanent or temporary taking or condemnation of all or any
portion of the Property.
vi. Except as disclosed to Purchaser, to the best of
Seller's knowledge, there is no pending or threatened, litigation, proceeding or
investigation relating to the Property or Seller's title thereto, nor, to the
best of Seller's knowledge, does Seller have reasonable grounds to know of any
basis for such litigation, proceedings or investigations.
vii. Seller has not received any written notice of any
violation of any laws, regulations, orders or requirements issued by any
Governmental Authority, or action in any court on account thereof, against or
affecting the Property.
viii. The person executing this Option Agreement on behalf
of Seller represents and warrants that he or she is an officer of Seller, has
been duly authorized by Seller to execute this Option Agreement, and has full
power and authority to execute the same on behalf of Seller.
ix. No representation, warranty or covenant by Seller in
this Option Agreement contains or will contain any untrue statement of material
fact, or omits or will omit to state a material fact necessary to make the
statements therein not misleading.
For the purposes of this Section 6, the term "best of Seller's
knowledge" shall be deemed to mean the actual knowledge of Seller without
investigation.
b. Purchaser Representations. Purchaser represents and warrants
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to Seller as follows, all of which
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representations and warranties are true and correct as of the date hereof and
shall be true and correct as of Closing hereunder:
i. Purchaser is a limited partnership duly formed and
validly existing under the laws of the State of Delaware.
ii. Purchaser has obtained all necessary consents and
approvals as may be required for Purchaser to enter into this Option Agreement.
iii. The person executing this Option Agreement on behalf
of Purchaser represents and warrants that he or she is an officer of the general
partner of Purchaser, has been duly authorized by such general partner to
execute this Option Agreement, and has full power and authority to execute the
same on behalf of Purchaser.
iv. No representation, warranty or covenant by Purchaser
in this Option Agreement contains or will contain any untrue statement of
material fact, or omits or will omit to state a material fact necessary to make
the statements therein not misleading.
c. Survival of Representations and Warranties.
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The representations and warranties set forth in this Section 6
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shall survive Closing and delivery of the deed for a period of two (2) years.
7 Default. If Purchaser, through no fault of Seller, shall fail to
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close or to perform any of its other obligations hereunder, Seller's sole and
exclusive remedy shall be the right to terminate this Option Agreement and to
receive reimbursement from Purchaser for all Seller's actual out-of-pocket
expenses incurred in connection with this Option Agreement. If Seller, through
no fault of Purchaser, shall fail to close or to perform any of its other
obligations hereunder, Purchaser's sole and exclusive remedies shall be either
the right to terminate this Option Agreement and to receive reimbursement from
Seller for all Purchaser's actual out-of-pocket expenses incurred in connection
with this Option Agreement, or the right to specific performance of the terms
hereof. In the event of any dispute hereunder, the prevailing party will be
entitled to collect its reasonable litigation costs (including reasonable
attorney's fees) from the other party.
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8. Indemnification by Seller. Seller shall hold harmless, indemnify
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and defend Purchaser and the Property from and against any misrepresentation or
breach of warranty by Seller under this Option Agreement and any claims,
actions, suits, proceedings, demands, assessments, judgments, costs and expenses
(including reasonable attorneys' fees) incident thereto. Promptly after the
receipt by Purchaser of notice of the commencement of any claim, proceeding, or
other action in respect of which indemnity may be sought from Seller (each an,
"Action"), Purchaser shall notify Seller in writing of the commencement of such
Action (but the omission to so notify Seller shall not relieve Seller for any
liability that it may otherwise have to Purchaser except to the extent that
Seller is materially prejudiced or forfeits substantive rights or defenses as a
result of such failure). Seller shall have the right, at its option and
expense, to assume the defense of any Action in which Purchaser is a party,
using counsel selected by it and reasonably acceptable to Purchaser. Seller
shall not, without the prior written consent of Purchaser (which consent shall
not be unreasonably withheld), settle or compromise any claim or consent to
entry of judgment that does not include an unconditional release of Purchaser
for all liabilities with respect to such claim.
9. Broker. Each party, by the execution hereof, represents and
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warrants that such party has not engaged the services of any broker, finder,
agent or other similar person or entity in connection with the Option. Each
party shall indemnify and hold harmless the other against and from any loss,
cost, damage or fee (including reasonable attorneys' fees) resulting from any
inaccuracy of such representation and warranty. This provision shall survive
Closing and the delivery of the deed or the termination of this Option
Agreement.
10. Miscellaneous.
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a. Notices. All notices, consents, approvals, demands and other
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communications under this Option Agreement shall be in writing and shall be
deemed properly delivered, given or served if (i) personally delivered against
receipted copy, (ii) mailed by certified or registered mail, return receipt
requested, postage prepaid, (iii) sent by telefacsimile (provided the
transmitting machine produces an acknowledgment of delivery), or (iii) sent by
overnight courier service to the parties at the following addresses:
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If to Purchaser:
Blue Ribbon Communities Limited
Partnership
c/o Manufactured Home Communities, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
With a copy to:
Manufactured Home Communities, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Seller:
Xxxxxxx Preservation, Inc.
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
All notices shall be deemed received (i) if personally delivered or
sent by telefacsimile, on the date of hand or telefacsimile delivery, (ii) if
sent by courier, one business day after it is sent, and (iii) if mailed, forty-
eight (48) hours after deposit in the United States mail. Either party may
change its address for the purpose of this Section by giving ten (10) days prior
written notice of such change to the other party in the manner provided in this
Section.
b. Governing Law. This Option Agreement shall be construed and
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enforced in accordance with the laws of the State of Florida.
c. Headings. The captions and headings herein are for
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convenience and reference only and in no way define or limit the scope of
content of this Option Agreement or in any way affect its provisions.
d. Counterparts. This Option Agreement may be executed in two
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or more counterpart copies, each of which counterparts shall have the same force
and effect as if both parties hereto had executed a single copy of this Option
Agreement.
e. Assignment; Binding Effect. Seller and
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Purchaser agree that the terms and conditions of this Option Agreement shall be
binding upon, and shall inure to the benefit of, their respective successors and
assigns. Purchaser shall have the absolute right to assign this Option Agreement
to its Affiliate. For the purposes of this Agreement, an "Affiliate" shall mean
any entity or person directly or indirectly controlling, controlled by, or under
common control with Purchaser ("control" here meaning the power to direct
management and policies by any lawful means).
f. Entire Agreement. This Option Agreement and the Exhibits and
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Schedules attached hereto contain the final and entire agreement between the
parties hereto with respect to the subject matter hereof, and are intended to be
an integration of all prior negotiations and understandings. No change or
modification to this Option Agreement shall be valid unless the same is in
writing and signed by the parties hereto. No waiver of any of the provisions of
this Option Agreement shall be valid unless the same is in writing and is signed
by the party against whom it is sought to be enforced.
g. Risk of Loss. The risk of loss to the Property shall remain
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with Seller and shall pass to Purchaser simultaneously with Seller's delivery of
a deed to the Property to Purchaser or Purchaser's agent at Closing.
h. Recordation. At the request of Purchaser, Seller shall
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execute a Memorandum of Option to be recorded among the land records of Palm
Beach County, Florida.
i. Further Assurances. Each party shall, whenever and as often
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as it shall be requested so to do by the other, cause to be executed,
acknowledged and delivered any and all such further instruments and documents
and do all such further acts and things as may be necessary or proper, in the
reasonable opinion of the requesting party, in order to carry out the intent and
purposes of this Option Agreement. This provision shall survive Closing and the
delivery of the deed.
j. Time Of Essence. Time is of the essence in this Option
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Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement as of the date first above set forth.
WITNESS: PURCHASER:
/s/ BLUE RIBBON COMMUNITIES LIMITED
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PARTNERSHIP, a Delaware limited
WITNESS: partnership
/s/ By: MHC-QRS Blue Ribbon Communities,
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Inc., a Delaware corporation, General
Partner
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
WITNESS: SELLER:
/s/ XXXXXXX PRESERVATION, INC., a Florida
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WITNESS:
By: /s/ Xxxxxxx Xxxxxxx
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/s/ Name: Xxxxxxx Xxxxxxx
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Title: President
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SCHEDULE A
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TERMS AND CONDITIONS OF PURCHASE AND SALE
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Capitalized terms used in these terms and conditions shall have the
meanings set forth in the Option Agreement unless the context otherwise
requires.
1. Subject to exercise of the Option, and upon the terms and conditions of the
Option Agreement and this Schedule A, Seller will sell and convey to
Purchaser the following described property (herein collectively called the
"Property"):
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A. LAND. The "Land", as defined in the Option Agreement.
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B. IMPROVEMENTS. All improvements in and on the Land.
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C. REAL PROPERTY. The Land and the Improvements, collectively.
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D. EASEMENTS. All easements, if any, benefiting the Real Property.
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E. RIGHTS AND APPURTENANCES. All rights and appurtenances pertaining to
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the foregoing, if any, including any right, title and interest of
Seller, if any, in and to adjacent streets, alleys or rights of way.
F. TANGIBLE PERSONAL PROPERTY. All of Seller's right, title and interest
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in all appliances, fixtures, equipment, vehicles, inventory from sales
operations, machinery, furniture, carpet, drapes and other personal
property, if any, located on or about the Real Property and the
Improvements or used in the operation and maintenance thereof (the
"Tangible Personal Property"). A schedule of the Tangible Personal
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Property is set forth in Appendix "A" attached hereto and made a part
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hereof.
G. INTANGIBLE PROPERTY. All of Seller's right, title and interest in the
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following intangible property (the "Intangible Property"): business
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telephone numbers, the name "The Xxxxxxx Mobile Home Park
Development," logos and similar items, leases, rental agreements,
prepaid rents and maintenance fees, marketing information, deposits,
contract rights, permits and licenses, pertaining to the Real
Property, the Improvements, or the Tangible Personal Property or the
use thereof.
2. PURCHASE PRICE. The purchase price for the Property shall be TWELVE MILLION
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THREE HUNDRED FORTY-ONE THOUSAND SIX HUNDRED NINETY-THREE DOLLARS AND
FORTY-SIX CENTS ($12,341,693.46) (the "Purchase Price"), payable by the
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forgiveness of that certain loan (the "Loan") from MHC Lending Limited
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Partnership ("MHCL"), an affiliate of Purchaser, to Seller, evidenced by a
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promissory note of even date with the Option Agreement from Seller to MHCL
and secured, by among other things, a Mortgage, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases and Rents and
an Assignment of Leases and Rents.
3. CLOSING.
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A. DATE AND TIME OF CLOSING. The closing and conveyance of title (the
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"Closing") shall be held thirty (30) calendar days after Seller
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receives the Option Exercise Notice, at a place to be mutually agreed
upon (the "Closing" or "Closing Date"), unless the parties mutually
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agree upon another time or date.
B. At or prior to the Closing, Purchaser shall:
(i) Cause MHCL to forgive the Loan, as payment of the
Purchase Price; and
(ii) Deliver to Seller such consents and authorizations as
reasonably necessary to evidence authorization of
Purchaser for the purchase of the Property, the
execution and delivery of any documents required in
connection with Closing and the taking of all action
to be taken by the Purchaser in connection with
Closing.
C. At or prior to the Closing, Seller shall deliver to Purchaser the
following (all executed as necessary):
(i) A Statutory Warranty Deed warranting good and
marketable fee simple title to the Real Property to
Purchaser subject only to the Permitted Exceptions
(hereinafter defined).
(ii) "Marked down" title commitment updated through the
Closing Date deleting the "gap" exception from
Schedule B-II and all other exceptions except for the
Permitted Exceptions (owner's policy to be delivered
"post closing" at Seller's expense).
(iii) A Warranty Xxxx of Sale and Assignment conveying the
Tangible Personal Property to Purchaser and such
assignments as may be necessary to convey Seller's
interest in the Intangible Property.
(iv) An Assignment of all Intangible Property including,
without limitation, all permits, licenses, warranties
regarding the Property and the books and records
pertaining to the planning, development, construction
and operation of the Property; and the originals of
the foregoing.
(v) An affidavit as required by (S) 723.072, Florida
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Statutes, showing Seller's compliance with (S)
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723.071, Florida Statutes.
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(vi) Tenant Deposits held by Seller as of the Closing
Date.
(vii) A certified and current rent roll, including
identification of tenants by name and lot number, the
current monthly rent, the lease and prospectus
applicable to each lot, the identification of tenant
deposits, and both prepaid and delinquent rents,
certified as accurate by Seller as of the Closing
Date.
(viii) An Assignment of all Leases and Rental Agreements for
the Property, together with the original instruments
for each lease or rental agreement. Additionally,
Seller shall assign, to the extent assignable, all
permits, licenses, warranties, promotional materials,
contracts (if Purchaser elects to assume obligation),
the name "The Xxxxxxx Mobile Home Park Development,"
logos, phone numbers and similar items used in the
operation of the Property.
(ix) An affidavit stating that no work has been performed
on the Property that would entitle any person or
entity to record a mechanic's or materialman's lien
against the Property, except persons or entities that
have been fully paid and have released all claims;
that Seller has sole possession of the Property,
except for tenants and guests under unrecorded
leases, reservations or rental agreements; that there
are no unrecorded easements; and other matters
reasonably required by the title insurer.
(x) An affidavit in accordance with IRS Code 1445
certifying that Seller is not a foreign person
subject to the withholding rules of the Foreign
Investment in Real Property Act.
(xi) The originals of all disclosed contracts pertaining
to the Property, including, but not limited to,
leases, deposits, rental agreements and other
disclosed agreements between Seller and its tenants
and service contracts that will be assumed by
Purchaser, which are attached as Appendix "B" and
made a part hereof (collectively the "Assumed
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Contracts"). All Assumed Contracts shall be assigned
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at Closing. Seller shall indemnify Purchaser from all
loss, cost or expense in connection with all the
claims, demands, actions or causes of action asserted
against Purchaser or the Property (the "Claims")
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arising out of the Assumed Contracts prior to
Closing, and for claims arising out of any contracts
not assumed by Purchaser both prior to and subsequent
to Closing. Purchaser shall indemnify Seller from all
loss, cost or expense in connection with any
Claims arising out of the Assumed Contracts
subsequent to the Closing.
(xii) A closing statement setting forth the allocation of
closing costs, purchase proceeds, etc.
(xiii) Certificates of title to vehicles(s), if any.
(xiv) Such consents and authorizations as reasonably
necessary to evidence Seller's authority to sell the
Property, including, without limitation, an affidavit
as required by Section 620.605, Florida Statutes, and
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such documentation as the title insurer may require
to ensure good and marketable title to the Property
passing to Purchaser; the execution and delivery of
any documents required in connection with the
Closing; and documentation necessary for the taking
of all action necessary to be taken by Seller in
connection with the Closing.
D. Proration: Taxes: At Closing, proration of income and expense and the
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apportionment of taxes shall be apportioned between Seller and
Purchaser as of the Closing Date on the basis that Seller owns the
Property on the Closing Date, with respect to the following items:
(i) All real-estate and personal property taxes and
assessments based upon the discounted amount of the
latest available bills. The parties agree to
reprorate the taxes at such time as the exact amount
of such taxes for 1998 become known. The 1998 taxes
shall be paid by Seller prior to Closing.
(ii) All rents (both earned and prepaid), other income,
utilities and all other operation expenses with
respect to the Property, and real estate and personal
property taxes and other assessments with respect to
the Property for the year in which the Closing occurs
shall be prorated as of the Closing Date. If the
Closing shall occur before any rents from the
Property have actually been paid for the month in
which the Closing occurs, only the rents actually
received by Seller will be prorated at Closing. If
any tenant owing rent to Seller is fully current in
his/her obligations to Purchaser, then subsequent to
the Closing, if any such rents owing to Seller are
actually received by Purchaser; immediately upon its
receipt of such rents, Purchaser shall pay to Seller
its proportionate share thereof for such month.
Purchaser shall pay over to Seller any such rents not
apportioned at the Closing received by Purchaser, for
the benefit of Seller.
(iii) All utility and/or service charges. Seller shall,
where practical, cause meters to be read and obtain
final invoices through and including the Closing
Date. Where this is not practical, the parties shall
assume equal per diem use over the period of the
billing, and adjustment shall be made accordingly.
Utility deposits, if any, shall be retained by
Seller. Purchaser shall replace any utility deposits
or utility bonds outstanding with regard to the
utilities serving the Property.
(iv) Any Assumed Contracts, including prepaid items or
licenses to the extent they are assumable (equipment
leases, maintenance contracts, etc.).
(v) The agreements of Seller and Purchaser set forth in
this section 3(D) shall survive the Closing and shall
not be merged in the Deed.
E. The parties agree that closing costs shall be paid as listed below.
Each party shall be responsible for payment of its respective
attorney's fees.
PURCHASER SELLER
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Recording of Deed Commission payable to any Seller's
broker
Costs of First Mortgage, if any including Documentary Stamps on Deed
intangible tax, documentary stamps & Pending Special Assessment Liens, if
recording fees any
Commission payable to any Purchaser's Title Insurance Commitment and Title
broker Insurance Policy with standard
endorsements and mortgagee policy if
desired by Purchaser Recording of
any mortgage or lien satisfactions
Impact fees, if any
4. Contingencies. Purchaser's obligation to purchase the Property is
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contingent upon the following:
A. TITLE EVIDENCE. Within ten (10) days after the date Seller receives
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the Option Exercise Notice, Seller shall deliver to Purchaser a
current ALTA owner's policy commitment for title insurance, together
with copies of all exception documents referred to therein. The title
commitment and owner's policy on ALTA Standard Form 1970 B Revised, to
be issued pursuant thereto, shall be paid for by Seller, shall be
issued at the minimum promulgated rate, and shall be in an amount
equal to the Purchase Price.
Purchaser shall have five (5) business days after receipt of the
survey described in Section 5 hereof, the title commitment, and copies
of all exception documents to give written notice to Seller of any
objections by Purchaser to the state of title
(including any matters shown on the survey which are reasonably
unacceptable to Purchaser). Failure of Purchaser to deliver a written
notice of disapproval of the status of title to Seller within said
five (5) business day period shall be conclusive evidence that
Purchaser has approved each and every matter contained in the title
commitment and shown on the survey, and that Purchaser will accept
title in that condition.
B. PERMITTED EXCEPTIONS. Seller shall convey and transfer to Purchaser at
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Closing good and marketable fee simple title to the Property, free and
clear of all liens and encumbrances, except those that can be and are
discharged by Seller at or before Closing, and the following,
hereinafter collectively referred to as the "Permitted Encumbrances."
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(i) Real Property Taxes for the year in which the sale and
purchase is closed, which shall be prorated as
provided for elsewhere herein;
(ii) Applicable zoning and other regulatory laws and
ordinances;
(iii) Rights of tenants under disclosed unrecorded rental
agreements;
(iv) Easements for provision of existing utilities services
and all other easements which benefit the Property and
that are approved by Purchaser; and
(v) The title exceptions listed in Schedule B of the title
commitment which Purchaser approves, or is deemed to
have approved, pursuant to this Paragraph 4.
C. TITLE DEFECTS. After due notice of any title defect, Seller shall have
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the obligation to cure any defects that can, with reasonable
diligence, be cured on or before the Closing Date. As to any other
defects, Seller shall have the option to cure such defects within
thirty (30) days after written notice. Purchaser shall be deemed to
have consented to such cure if Purchaser fails to respond within ten
(10) days after written notice from Seller of Seller's intent to cure
such "other" defects (and, if necessary, the Closing shall be delayed
for that period). Should Seller either elect not to cure, or if
Purchaser does not give its consent to a cure by Seller, Purchaser
shall have the option to:
(i) withdraw the Option Exercise Notice and declare the
Option Agreement null and void and of no further force
and effect by written notice to Seller, whereupon
neither Seller nor Purchaser shall have any further
obligations under the Option Agreement or these terms
and conditions, or
(ii) Proceed under the Option Agreement and these terms and
conditions and accept title to the Real Property
subject to such defects, in which case the Closing
shall take place on the later of the date set for
Closing as herein provided or on a date mutually agreed
upon by Seller and Purchaser, without reduction in the
Purchase Price.
5. SURVEY. Purchaser may, at its expense, within twenty (20) days after the
------
date upon which Seller receives the Option Notice Exercise, update any
prior survey or obtain a new survey of the Real Property in a form
acceptable to the title insurer. The legal description of the Real Property
is described in Exhibit "A" to the Option Agreement. Seller shall furnish
-----------
Purchaser with all surveys in its possession, if any. If the survey
discloses lack of access, a violation of deed restrictions, zoning
regulations or covenants or these terms and conditions, easements which are
not approved by Purchaser, that any improvements are not entirely on the
Property, or other reasonable survey objections, the same shall be treated
as a title defect and treated as provided in Paragraph 4(C). Purchaser
shall have five (5) business days from receipt of said survey to deliver a
written notice of disapproval of the status of title based upon Purchaser's
survey. Failure of Purchaser to deliver a written notice of disapproval
based upon Purchaser's survey within said five (5) business day period
shall be conclusive evidence that Purchaser has approved each and every
matter contained in Purchaser's survey and that Purchaser will accept title
in that condition.
6. CONDITIONS TO PURCHASER'S OBLIGATION TO CLOSE. Purchaser's obligation to
---------------------------------------------
close this transaction is expressly conditioned upon the following, which
if not satisfied or waived by Purchaser on or before the Closing Date,
shall permit Purchaser to withdraw the Option Exercise Notice and declare
the Option Agreement null and void and of no further force and effect by
written notice to Seller; whereupon neither Seller nor Purchaser shall have
any further obligations under the Option Agreement or these terms and
conditions.
A. Seller shall have performed and complied with all of the covenants and
agreements contained in the Option Agreement and/or these terms and
conditions which are to be performed prior to the Closing Date;
B. Seller shall have delivered the "marked down" commitment from the
title underwriter updated through the Closing Date in the full amount
of the Purchase Price subject only to the Permitted Exceptions and
deleting the "gap" exception from Schedule B-2;
C. The Property shall not have been materially affected by an moratorium,
legislative or regulatory change, or any flood, accident, condemnation
or other material adverse event; and
D. All representations and warranties of Seller as set forth in Paragraph
7 next below shall be substantially true and correct as of the Closing
Date.
Purchaser may at any time or times before Closing waive any of the
foregoing conditions but only in writing signed by Purchaser and delivered to
Seller. In the event any of the conditions are not waived by Purchaser prior to
the Closing Date, Purchaser may withdraw the Option Exercise Notice and declare
the Option Agreement null and void and of no further force and effect by written
notice to Seller, and thereafter neither Purchaser nor Seller shall have any
further liabilities or obligations under the Option Agreement or these terms and
conditions
7. WARRANTIES, REPRESENTATIONS AND COVENANTS. The parties agree that Seller
-----------------------------------------
has made no representations or warranties to Purchaser of any kind
regarding the financial or business status of the Property, other than as
set forth in the Option Agreement and these terms and conditions. Seller
hereby represents and warrants to, and covenants with, Purchaser that:
A. Seller has good, marketable and insurable title to the Real Property,
and the Real Property is free and clear of all liens, encumbrances,
restrictions, security interests, covenants, conditions and other
matters in any way affecting title to the Real Property, other than
the Permitted Exceptions, save for the Loan (which will be satisfied
at Closing as payment of the Purchase Price).
B. Seller has no knowledge of any declarations, covenants or restrictions
of record which should prevent the continued use of the Property as a
381-space mobile home park, all of which are fully developed with full
utility services and fully rentable.
C. There are no pending or threatened condemnation or similar proceeding
affecting the Real Property, or any part thereof.
D. Except as otherwise disclosed to Purchaser in writing, to Seller's
knowledge, there are no action, suits or other legal or administrative
proceedings, including bankruptcy proceedings, pending or threatened,
against or involving Seller or the Property which could affect the
consummation of the transactions contemplated hereby.
E. No goods or services have been contracted for or furnished to the Real
Property which will give rise to any mechanic's liens or other liens
affecting all or any part of the Real Property, except for ongoing
maintenance expense, which will be paid in full prior to or at
Closing. Seller may contract for repairs or services which could
result in a lien but Seller shall not allow any such liens to attach
to the Real Property and shall execute an appropriate affidavit of no
liens at Closing upon which Purchaser and the Title Insurer may rely.
F. That except as shown on any surveys obtained pursuant to Paragraph 5,
there are no encroachments on the Property and the Improvements which
are constructed on the Property do not encroach upon the land of
others.
G. Seller has entered into no covenants, conditions, easements,
restrictions, agreements or encumbrances which would prohibit the
operation of a mobile home park on the Real Property.
H. There are no rental agreements which affect the Real Property except
as set forth in the rent roll attached as Appendix "C" (the "Rent
------------ ----
Roll") which has been provided by Seller. There are no rental
----
agreements in excess of twelve (12) months and no rental agreements
affording discounted rents except as set forth in the Rent Roll. The
information contained therein is true and correct as of the Effective
Date; no rental agents, brokers or finders have any rights with regard
to such rental agreements, and there are no commissions payable in
connection therewith; no tenant has an option to purchase any part of
the Property; and Seller is the landlord under each such rental
agreement and has the right to assign same to Purchaser.
I. To the best of Seller's knowledge, Seller is in compliance with
Chapter 723, Florida Statutes, and all regulations promulgated
thereunder.
J. Water and sewer services are provided by the City of Palm Beach
Gardens, Florida ("City"), and all costs of design, construction and
----
permitting of water and sewer facilities and all connection fees have
been paid. Seller is current in its obligation to the City for water
and sewer services.
K. The Tangible Personal Property is in good working condition, and at
the time of Closing will be in good working order; and the Tangible
Personal Property is free and clear of all liens and encumbrances,
except as otherwise provided in these terms and conditions.
L. Seller has the right to assign the name by which the Property is
commonly known and to use that name in the operation of the Property.
Seller represents to Purchaser that Seller has received no notice
objecting to the use of this name for the Property, but Seller
otherwise makes no warranty or representation as to Purchaser's
ability to use or to continue to use this name.
M. To the best of Seller's knowledge, the information contained in the
Financial Statements identified in Appendix "D" attached hereto is
true and correct in all material respects. Seller has not been
notified of any material increases in expenses that are not reflected
in such statements; for the financial statements reflecting the fiscal
year 1995-1996, no part of the net operating income shown thereon is
attributable to the approximately 89 unrented mobile home spaces on
the Property.
N. To the best of Seller's knowledge, there are no existing or continuing
violations of any law, ordinance, rule, order, regulation, code or
requirement, including any requirement contained in any hazard
insurance policy covering the Property or any part thereof or of any
board of fire underwriters or other body exercising a similar
function, which are applicable to the Property or to any part thereof
or which are applicable to the use or manner of use, occupancy,
possession or operation of the Property, except as disclosed by those
documents provided by Seller pursuant to Paragraph 3 hereof.
O. To the best of Seller's knowledge, Seller has obtained and kept in
good standing all governmental permits, licenses and approvals
necessary for the operation of the Property, including, as applicable,
all health permits, Department of Environmental Protection permits and
HRS permits, and Seller has not received notice of any material
violations thereunder.
P. To the best of Seller's knowledge and except as disclosed by documents
delivered by Seller hereunder, the use of the Property is consistent
with the zoning uses authorized and permitted by the ordinances of the
City and County where the Property is located; and, except those
disclosed to Purchaser pursuant to Paragraph 3 hereof there are no
unpaid assessments, impact fees or other development type charges
pertaining to the Property except those disclosed to Purchaser
pursuant to Paragraph 3 hereof.
Q. Seller has not entered into any commitments or agreements with any
governmental authorities or agencies affecting the Property excepting
those disclosed by Purchaser pursuant to Paragraph 3 hereof, and
Seller has received no notices from any such governmental agencies and
has no independent knowledge of uncured violations at the Property of
building, fire, air pollution or zoning codes, rules, ordinances or
regulations, environmental and hazardous substances laws, or other
rules, ordinances or regulations relating to the Property.
R. Neither the execution and delivery of the Option Agreement by Seller,
nor the consummation by Seller of the transactions contemplated hereby
will (i) require Seller to file or register with, notify, or obtain
any permit, authorization, consent, or approval of, any governmental
or regulatory authority; (ii) conflict with or breach any provision of
the Articles of Incorporation, Bylaws or other corporate documents of
Seller; (iii) violate or breach any provision of, or constitute a
default (or an event which, with notice or lapse of time or both,
would constitute a default) under, any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which
Seller is a party, or by which Seller, the Property or any of Seller's
material assets may be bound; or (iv) violate any order, writ,
injunction, decree, judgment, statute, law or ruling of any court or
governmental authority applicable to Seller, the Property or any of
Seller's material assets.
S. To the best of Seller's knowledge, neither these terms and conditions
nor any Appendix nor any written statement or transaction document
furnished or to be furnished by Seller to Purchaser in connection with
the transactions contemplated by these terms and conditions contain or
will contain any untrue statement of material fact or omits or will
omit any material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
T. Prior to the Closing, Seller will only enter into customary, twelve
(12) month rental agreements. Seller will not enter into any amendment
to or modification of any of the rental agreements prior to the
Closing which will reduce, forgive or
postpone any rents or which would otherwise materially affect the
value of the Property, without Purchaser's consent, which will not be
unreasonably withheld. There are no commissions or other fees payable
to any person, entity or agent on the rentals collected or to be
collected under the rental agreements save as agreed with Purchaser in
writing.
U. Except as disclosed to Purchaser in writing, no person, firm,
corporation or other legal entity whatsoever, other than Purchaser,
has any right, contract or option whatsoever to acquire the Property
or any portion or portions thereof or any interest or interests
therein, except for the rights of the tenants of the Property under
Florida Statutes Section 723.071.
----------------
V. Seller specifically represents, covenants and warrants that, to the
best of its actual knowledge, the Property and the use and operation
thereof will comply with all state and Federal environmental laws,
rules and regulations, including, without limitation, the Federal
Resource Conservation and Recovery Act and the Comprehensive
Environmental Response Compensation and Liability Act of 1980 and all
amendments and supplements thereof and shall continue to comply
therewith at all times. Specifically, and without limiting the
generality of the of the foregoing, Seller represents, covenants and
warrants that Seller has not used the Property and that to the best of
its actual knowledge, the Property is not now being used for the
handling, storage, transportation, or disposal of hazardous or toxic
materials, nor is Seller aware of any hazardous substances used,
stored or handled on land adjacent to the Property. Further, Seller
represents and warrants that Seller has never been cited or notified
of any violation of any state or federal environmental law, rule or
regulations. In the event that the representations and warranties
contained herein prove to be incorrect, Seller agrees to indemnify,
defend, and hold Purchaser harmless from and against any loss to
Purchaser, for which Seller is directly liable, including, without
limitation, reasonable attorneys' fees and costs of site investigation
and cleanup, incurred by Purchaser, but excluding consequential
damages, as a result of Seller's handling, storage, transportation, or
disposal of hazardous or toxic materials during Seller's ownership of
the Property. This provisions shall survive the Closing of the
purchase and shall not be merged in the deed.
W. The Property contains and is zoned, licensed and permitted to contain
and operate a mobile home park with 381 rentable mobile home spaces,
of which all 381 are fully rentable with full utility services. The
Property currently has 292 rental spaces rented and 89 rental spaces
unrented.
Seller's foregoing representations and warranties shall survive the Closing and
shall not be merged in the deed for a period of one (1) year from the Closing.
8. RISK OF LOSS.
------------
A. Condemnation. If, after the Option Exercise Notice has been given,
------------
but prior to Closing, action is initiated to take any of the Property
by eminent domain
proceedings or by deed in lieu thereof that exceeds five percent (5%)
of the Real Property, Purchaser may either (a) withdraw the Option
Exercise Notice and declare the Option Agreement null and void and of
no further force and effect by written notice to Seller; whereupon
neither Seller nor Purchaser shall have any further obligations under
the Option Agreement or these terms and conditions, or (b) consummate
the Closing, in which latter event the award of the condemning
authority shall be assigned to Purchaser at Closing. Notwithstanding
the foregoing, if Purchaser exercises the Option and the taking of any
of the Property is less than 5% of the Real Property, the award or the
rights to the award of the condemning authority shall be assigned to
Purchaser at Closing.
9. CASUALTY. Seller assumes all risks and liability for damage to or injury
--------
occurring to the Property by fire, storm, accident, or any other casualty
or cause until the Closing has been consummated. If, after the Option
Exercise Notice has been given but prior to Closing, the Property, or any
part thereof, suffers any damage in excess of $50,000.00 from fire or other
casualty which Seller, at its sole option, does not repair, Purchaser may
either: (a) withdraw the Option Exercise Notice and declare the Option
Agreement null and void and of no further force and effect by written
notice to Seller; whereupon neither Seller nor Purchaser shall have any
further obligations under the Option Agreement or these terms and
conditions, or (b) consummate the Closing, in which latter event the
proceeds of any insurance not exceeding the Purchase Price and covering
such damage shall be assigned to Purchaser at the Closing. In such event,
Seller shall pay to Purchaser at Closing an amount equal to any deductible
under said insurance coverage.
10. POSSESSION. Seller agrees to deliver possession of the Property to
----------
Purchaser at Closing, subject only to the rights of tenants-in-possession
under disclosed rental agreements, Assumed Contracts and the Permitted
Exceptions.
11. DEFAULT AND LIQUIDATED DAMAGES. In the event of a default by either
------------------------------
Purchaser or Seller after Purchaser has exercised the Option, the parties
agree to the following:
A. In the event of a default by Seller, Purchaser may pursue any remedies
available as a result of Seller's breach, including specific
performance.
B. In the event of a default by Purchaser, Seller may pursue any remedies
available as a result of Purchaser's breach, including specific
performance.
The provisions of this Paragraph 11 shall survive Closing and shall not be
merged in the deed.
12. REAL ESTATE COMMISSIONS.Except as stated in this section, neither Seller
-----------------------
nor Purchaser has contacted any real-estate broker, finder, or similar
person in connection with the transaction contemplated hereby and neither
party is obligated to pay any brokerage fee or commission in connection
with this sale.
To the knowledge of Seller and of Purchaser, no Acquisition Fees (as
hereinafter defined) have been paid or are due and owing to any person or
entity by Seller or Purchaser. As used herein, "Acquisition Fees" shall
mean all fees paid to any person or entity in connection with the selection
and purchase of the Property, including real estate
commissions, selection fees, nonrecurring management and startup fees,
conversion fees, development fees or any other fee of similar nature.
Seller and Purchaser each hereby agree to indemnify and hold harmless the
other from and against any and all claims for Acquisition Fees or similar
charges with respect to this transaction, arising by, through or under the
indemnifying party, and each further agrees to indemnify and hold harmless
the other from any loss or damage resulting from any inaccuracy in the
representations contained in this section. This indemnification agreement
of the parties shall survive the Closing.
13. LIABILITY AND INDEMNIFICATION
-----------------------------
A. Purchaser does not and shall not assume any liability for any claims
arising out of any occurrence prior to the Closing Date with respect
to the Property.
B. From and after the Closing Date, Seller agrees to indemnify and hold
harmless Purchaser, and Purchaser's successors and assigns, from and
against any and all claims, penalties, damages, liabilities, actions,
causes of action, costs and expenses (including attorney's 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 any
occurrence at the Property or in connection with the Seller's use,
possession, operation, repair and maintenance of the Property prior to
the Closing Date; and (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. In such
event, Seller shall be promptly notified by Purchaser and shall have
the right and duty to defend such claims against Purchaser.
C. From and after the Closing Date, Purchaser agrees to indemnify and
hold harmless Seller, and Seller's successors and assigns, from and
against any and all claims, penalties, damages, liabilities, actions,
causes of action, costs and expenses (including attorneys' fees),
arising out of, or as a consequence of any property damage or injuries
to persons, including death, caused by any occurrence at the Property
after the Closing Date in connection with Purchaser's use, possession,
operation, repair and maintenance of the Property after the Closing
Date. In such event, Purchaser shall be promptly notified by Seller
and shall have the right and duty to defend such claims brought
against Seller.
The provisions of this Paragraph 13 shall survive Closing and shall not be
merged into the deed.
14. THIRD PARTIES. Neither the Option Agreement nor these terms and conditions
-------------
shall be deemed to confer in favor of any third parties any rights
whatsoever as third-party beneficiaries, the parties hereto intending by
the provisions hereof to confer no such benefits or status.
15. PROVISIONS TO SURVIVE CLOSING. Any provision which by its nature or effect
-----------------------------
is required to be performed, or which may be performed, or which may be
breached after delivery of the deed, shall survive delivery of said deed
except as otherwise expressly provided by the Option Agreement or these
terms and conditions. The time limitations applicable to
Seller's representations and warranties set forth in Paragraph 7 above,
shall not be applicable to other survival provisions set forth in the
Option Agreement or these terms and conditions, nor to those warranties
expressly set forth in the Warranty Deed, Xxxx of Sale or any other
conveyancing document executed and delivered by Seller to Purchaser.
16. RADON DISCLOSURE. Radon is a naturally occurring radioactive gas that, when
----------------
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtaining from your County Public Health Unit.
17. PURCHASER'S COVENANTS. The parties hereby agree that, if Purchaser
---------------------
exercises the Option and the Closing occurs, then:
A. MANAGEMENT AND OPERATION OF PROPERTY. Unless and until otherwise
------------------------------------
determined by Purchaser, Purchaser or its affiliate shall act as the
property manager of the Property. In addition, subject to applicable
law, unless and until otherwise determined by Purchaser, Purchaser or
its affiliate as the exclusive sales/resales and marketing agent at
the Property (provided, however, that each owner (a "Homeowner") of a
---------
mobile or manufactured home (a "Home") located on a site ("Homesite")
---- --------
on the Property shall have the right to sell such Home independent of
Purchaser), and shall have the exclusive right to develop and market
additional Homesites within the Property.
B. USE OF PROPERTY. Purchaser shall (i) not convert the use of the
---------------
Property to any use other than a mobile home park or manufactured home
community use during the period of ten (10) years commencing on the
Closing Date (the "Restriction Period") (subject to causes beyond
------------------
Purchaser's reasonable control, including, without limitation, zoning
changes, condemnation and casualty), (ii) spend at least Four Hundred
Thousand Dollars ($400,000) (which sum shall be funded solely by
Purchaser or its affiliate) within a reasonable time after the Closing
Date on capital improvements to the Property, including, without
limitation, installation of a gate at the front entrance, improvements
to the clubhouse building and street repairs, (iii) make a one-time
contribution of One Hundred Thousand Dollars ($100,000) (which sum
shall be funded solely by Purchaser or its affiliate) to the MPI Park
Purchase Account on the Closing Date, (iv) limit annual base rent
increases at the Property during the Restriction Period to the greater
of (A) five percent (5%) or (B) the corresponding annual percentage
increase in the "Consumer Price Index for All Urban Consumers, All
Items" prepared by the Bureau of Labor Statistics of the United States
Department of Labor, and (v) to limit additional rent pass-throughs to
(A) ad valorem taxes, (B) non-ad valorem assessments and (C) costs
incurred by Purchaser or its affiliate to comply with governmental
directives.
C. SUBLEASING. Homeowners may continue to sublease their Homes
----------
substantially in accordance with current Property practice; provided,
--------
however, that each Homeowner shall remain responsible for complying
-------
with such Homeowner's
rental agreement, for maintaining such Homeowner's Home in compliance
with the standards set forth in the Property's rules and regulations
(the "Rules and Regulations"), and for ensuring that such Homeowner's
sublessee complies with the Rules and Regulations.
D. MAINTENANCE OF HOMES. Each Homeowner shall be responsible for
--------------------
maintaining such Homeowner's Home in good condition and repair and in
compliance with the standards set forth in the Rules and Regulations.
If any Homeowner fails to properly maintain such Homeowner's Home,
Purchaser shall give such Homeowner written notice of such failure. If
such Homeowner does not cure such failure within thirty (30) days (or
if such failure cannot reasonably be cured within such thirty (30) day
period, if such Homeowner does not commence the curing of such failure
within such thirty (30) day period and diligently prosecute such
curing to completion within a reasonable time thereafter), Purchaser
may require that such Homeowner's Home be moved to another Homesite
designated by Purchaser or removed from the Property.
E. UPGRADE POLICY. Upon the sale or other transfer of a Home not meeting
--------------
then-current Property standards, or upon a change in the persons
occupying such a Home (other than changes involving related parties),
Purchaser may require that the Home be upgraded to then-current
Property standards, moved to another Homesite designated by Purchaser
or removed from the Property. If the new owner or proposed occupant of
the Home acquires the Home before any such required upgrades are
completed, such new owner or proposed occupant shall not be given a
rental agreement unless and until they complete the required upgrades
within six (6) months after they acquire the Home.
The provisions of this Section 17 shall survive the Closing and shall not be
merged in the deed.
18. APPENDICES. The following appendices are attached to and are incorporated
----------
into these terms and conditions:
A. Appendix "A"Schedule of Tangible Personal Property.
-----------
B. Appendix "B"Assumed Contracts.
-----------
C. Appendix "C"Rent Roll
-----------
D. Appendix "D"Financial statements
-----------
Appendix A
----------
Schedule of Tangible Personal Property
--------------------------------------
See attached
EXHIBIT "B"; ITEM 1.
TANGIBLE PERSONAL PROPERTY INCLUDED
INCLUDED IN THE SALE OF THE XXXXXXX MOBILE HOME PARK IS ALL OF THE TANGIBLE
PERSONAL PROPERTY LOCATED UPON THE PREMISES AT 0000 X.X.X. XXXXXXXXX, XXXX XXXXX
XXXXXXX, XXXXXXX 00000
INCLUDING:
1. 1994 CHEVROLET PICK UP TRUCK VIN 0XXXX0000XX000000
2. TWO (2) XXXX DEER LAWN TRACTORS
3. XXXXX LAWN TRACTOR
4. MISCELLANEOUS POWER AND HAND LAWN EQUIPMENT
5. TOOLS AND SPARES IN GARAGE
6. 4000 WATT GENERAC GENERATOR
7. MAIN OFFICE FURNITURE
8. MAIN OFFICE COMPUTER
9. MAIN OFFICE MOBILE HOME WITH ATTACHED GARAGE VIN T3228A &
T3228B
10. OLD OFFICE MOBILE HOME
11. CLUB HOUSE FURNITURE
12. CLUB HOUSE TV SET
13. CLUB HOUSE KITCHEN APPLIANCES
14. CLUB HOUSE BILLIARD TABLE AND ACCESSORIES
EXCLUDING:
1. COMPUTER AND RELATED EQUIPMENT IN MANAGER'S OFFICE
2. MANAGER'S FURNITURE (DESK, CHAIR, CREDENZA, TABLE, AND 2 CHAIRS)
3. TWO (2) FOUR DRAWER INSULATED LEGAL FILE CABINETS
4. PERSONAL PROPERTY OF MANAGER STORED IN OFFICE, GARAGE, OR "OLD
OFFICE TRAILER"
5. BOOKS AND RECORDS OF ALL ENTITIES (INCLUDING BUT NOT LIMITED TO: H.G.G.S.
ASSOCIATES; XXXXX XXXXXX ASSOCIATES, INC.; XXXXX XXXXXX LTD.), AND FILE
CABINETS STORING THEM
6. SIX MOBILE HOMES LOCATED ON XXXX 000X, 000, 000, 000, 000, & 000
0. ALL BANK ACCOUNTS CHECKS AND RECORDS OF H.G.G.S. ASSOCIATES
Appendix B
----------
Assumed Contracts
-----------------
Water use permit compliance monitoring provided by ViroGroup without a current
written agreement.
Appendix C
----------
Rent Roll
---------
See attached
Appendix D
----------
Financial Statements
--------------------
Not attached by agreement
AMENDMENT TO OPTION AGREEMENT
-----------------------------
THIS AMENDMENT TO OPTION AGREEMENT (this "Amendment"), made as of this 30th
---------
day of March, 1998, by and between XXXXXXX PRESERVATION, INC., a Florida
corporation ("Seller"), and BLUE RIBBON COMMUNITIES LIMITED PARTNERSHIP, a
------
Delaware limited partnership ("Purchaser").
---------
WITNESSETH:
WHEREAS, the parties entered into that certain Option Agreement dated as of
December 18, 1997 (the "Option Agreement"), whereby Seller granted to Purchaser,
----------------
on the terms and conditions set forth in the Option Agreement, the exclusive
option to purchase (the "Option") all that parcel of real estate located at the
------
northwest corner of PGA Boulevard and Prosperity Farms Road in Palm Beach
County, Florida, and commonly known as "The Xxxxxxx Mobile Home Park", which is
more particularly described on Exhibit A attached hereto (the "Land"), together
--------- ----
with all improvements thereon (with the Land, the "Property");
--------
WHEREAS, pursuant to the Option Agreement, the Option may be exercised at
any time during the period commencing on March 18, 1998 and ending at 5:30 p.m.
on April 17, 1998.
WHEREAS, Seller and Purchaser have agreed to extend the period during which
the Option may be exercised by Purchaser, and to make certain other amendments
to the Option Agreement, as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, made one to another, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Section 3(a) of the Option Agreement is hereby deleted in its entirety
------------
and replaced with the following:
"3(a) The Option may be exercised by notice in writing from Purchaser
to Seller at any time during the period commencing on August 1, 1998
and ending at 5:30 p.m. on August 31, 1998."
2. The date "March 18, 1998" shall be deleted wherever it appears in
Sections 3(b) and 4 and replaced with the date "August 1, 1998".
-------------------
3. Except as specifically modified by this Amendment, all of the remaining
terms of the Option Agreement shall continue in full force and effect.
4. This Amendment shall be construed and enforced in accordance with the
laws of the State of Florida.
5. This Amendment may be executed in two or more counterpart copies, each
of which counterparts shall have the same force and effect as if the parties
hereto had executed a single copy of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above set forth.
SELLER:
BLUE RIBBON COMMUNITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
WITNESS:
By: MHC-QRS Blue Ribbon Communities, Inc.,
/s/ a Delaware corporation, General Partner
--------------------
/s/ By: /s/ Xxxxx Xxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President/General Counsel
SELLER:
WITNESS: XXXXXXX PRESERVATION, INC., a Florida
corporation
/S/ BY: /S/ XXXXXXX XXXXXX
--------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
/S/
--------------------
SECOND AMENDMENT TO OPTION AGREEMENT
------------------------------------
THIS SECOND AMENDMENT TO OPTION AGREEMENT (this "Amendment"), made
---------
as of this 19th day of August, 1998, by and between XXXXXXX PRESERVATION, INC.,
a Florida corporation ("Seller"), and BLUE RIBBON COMMUNITIES LIMITED
------
PARTNERSHIP, a Delaware limited partnership ("Purchaser").
---------
WITNESSETH:
WHEREAS, Xxxxxxx Preservation, Inc., a Florida corporation ("MPI-1"),
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and Purchaser entered into that certain Option Agreement dated as of December
18, 1997, as amended by that certain Amendment to Option Agreement dated as of
March 30, 1998 (collectively, the "Option Agreement"), whereby Seller granted to
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MPI-1, on the terms and conditions set forth in the Option Agreement, the
exclusive option to purchase (the "Option") all that parcel of real estate
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located at the northwest corner of PGA Boulevard and Prosperity Farms Road in
Palm Beach County, Florida, and commonly known as "The Xxxxxxx Mobile Home
Park", which is more particularly described on Exhibit A attached hereto,
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together with all improvements thereon;
WHEREAS, pursuant to the Option Agreement, the Option may be exercised
at any time during the period commencing on August 1, 1998 and ending at 5:30
p.m. on August 31, 1998; and
WHEREAS, Seller, the successor by mergers to MPI-1, and Purchaser have
agreed to extend the period during which the Option may be exercised by
Purchaser, to modify the circumstances in which the Option may be exercised, and
to make certain other amendments to the Option Agreement, as hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto, made one to another, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Option Agreement is hereby amended as follows:
(a) The portion of the second recital of the Option Agreement
commencing with the words ", conditioned upon" in the third line and continuing
through the words "an agreed date" in the fifth and sixth lines is deleted in
its entirety.
(b) The third recital of the Option Agreement is hereby deleted
in its entirety and replaced with the following new recital:
"WHEREAS, Purchaser has agreed to provide, or
cause to be provided, interim financing for
Seller's acquisition of the Property, conditioned
upon, among other things, Seller granting to
Purchaser the option to purchase the Property
set forth in this Option Agreement if Seller fails
to enter into the aforesaid joint venture with
Purchaser on the terms and conditions hereinafter
set forth."
(c) Section 3(a) of the Option Agreement is
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deleted in its entirety and replaced with the following new
Section 3(a):
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"3(a) The Option may be exercised by notice in
writing from Purchaser to Seller at any time
during the period commencing on December 1, 1998
and ending at 5:30 p.m. on December 31, 1998."
(d) The portion of Section 3(b) of the Option
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Agreement commencing with the date "March 18, 1998 " on
the third line and continuing through the words and
numbers "reasonably acceptable to Purchaser, and (iii)"
on the eleventh line is hereby deleted and replaced
with "December 1, 1998,".
(e) The date "August 1, 1998" on the second line of Section 4 of
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the Option Agreement is hereby deleted and replaced with the date "December 1,
1998".
(f) Exhibit A to the Option Agreement is hereby replaced with
Exhibit A attached hereto.
2. Except as specifically modified by this Amendment, all of the
remaining terms of the Option Agreement shall continue in full force and effect.
3. This Amendment shall be construed and enforced in accordance with
the laws of the State of Florida.
4. This Amendment may be executed in two or more counterpart copies,
each of which counterparts shall have the same force and effect as if the
parties hereto had executed a single copy of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above set forth.
SELLER:
BLUE RIBBON COMMUNITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
WITNESS:
By: MHC-QRS Blue Ribbon Communities, Inc.,
/s/_____________________ a Delaware corporation, General Partner
/s/_____________________ By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
SELLER:
WITNESS: XXXXXXX PRESERVATION, INC., a florida
corporation
/s/______________________ By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Treasurer
/s/______________________
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