MOBILE HOME PARK
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made effective the 13th day of May, 1997, by and
between:
SELLER: FAE MOBILE HOME PROPERTIES (1974), a
Pennsylvania limited partnership
0 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
BUYER: HFIC INC., a Missouri corporation
c/o Property Asset Management
0000 X. Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
WITNESSETH:
WHEREAS, Seller is the fee simple owner of certain commonly known as
PARK ROYALE MOBILE HOME PARK located in Pinellas County, Florida, more
particularly described in Exhibit "A" attached hereto and made a part hereof
(together with all rights and easements appurtenant thereto and all permanent
improvements, fixtures and utility systems thereon, being hereinafter
collectively referred to as the "Real Property"); and
WHEREAS, Seller desires to sell and Buyer desires to purchase the Real
Property and all personal property, fixtures and equipment described in the
Schedule of Personal Property attached hereto as Exhibit "B" and made a part
hereof (the "Personal Property"), together with all of Seller's right, title and
interest in and to (a) rights of way, reservations, privileges, appurtenances
and other estates and rights of Seller pertaining to the Real Property and
improvements; (b) each of the Leases (as defined in paragraph 7 herein) and all
modifications and amendments thereof, together with all security deposits in
Seller's possession; (c) each of the Service Contracts (as defined in paragraph
4 herein); (d) all licenses, warranties and guaranties, if any, and all benefits
thereof, which effect the improvements on the Real Property or any component
thereof; (e) utility rights, all permits, impact fee credits, if available,
plans and specifications, site plans, and all marketing, environmental,
engineering, architectural reports, if any, of Seller; (f) occupancy permits and
certificates and all other licenses and approvals issued with reference to the
Property by any governmental or quasi-governmental body or authority; (g) all
advertising brochures, and any and all rights to use existing trade names
affecting the Property; under the terms and conditions set forth herein (the
aforesaid Real Property and Personal Property, together with all of the
foregoing items listed in clauses (a) through (g) above, being hereinafter
collectively referred to as the "Property").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, together with other valuable considerations, the receipt and sufficiency
of which is hereby acknowledged, Seller agrees to sell and Buyer agrees to buy
the Property on and under the terms and conditions herein set forth.
1. RECITALS. The above recitals are true and correct and are
incorporated herein by reference.
2. PURCHASE PRICE. The purchase price for the Real Property shall be
FIVE MILLION NINE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($5,950,000.00) and
for the Personal property shall be FIFTY THOUSAND AND 00/100 DOLLARS
($50,000.00), for a total purchase price (the "Purchase Price") of SIX MILLION
AND 00/100 DOLLARS ($6,000,000.00), and shall be payable as follows:
(a) Xxxxxxx Money Deposit. As an xxxxxxx money deposit (the
"Xxxxxxx Money Deposit"), Buyer has deposited with Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A., 000 Xxxxxx Xxxxxx North, Seventeenth Floor, St.
Petersburg, Florida 33701, (the "Escrow Agent"), the sum of ONE HUNDRED AND
NO/100 DOLLARS ($100.00) upon the execution of this Agreement by Buyer, which
sum shall be held in escrow and credited toward the Purchase Price at closing or
otherwise disbursed by Escrow Agent in accordance with the terms of this
Agreement.
(b) Cash. Cash at closing in the amount of SIX MILLION AND
NO/100 DOLLARS ($6,000,000.00), less any credits, adjustments or prorations due
to Buyer as provided herein payable by locally drawn cashier's check or Federal
Reserve Bank wire.
(c) Earn-Out. Pursuant to a separate Earn-Out Agreement of even
date, there is an additional contingent purchase price as described in the
foregoing Earn-Out Agreement.
3. KEY DOCUMENTS. Seller has furnished to Buyer the following
information regarding Buyer's review of the Property:
(a) current certified rent roll;
(b) thirty-six months of operating statements for the Property;
(c) All Prospectuses for the Property in the forms approved by
the Division of Florida Land Sales, Condominiums and Mobile Homes of the
Department of Business and Professional Regulation;
(d) copies of any engineering, architectural, utilities, soils
and asbestos reports;
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(e) list and copies of all permits held, and consents of
governmental authorizations required to operate the Property;
(f) form of tenant lease (attached to Prospectus);
(g) current Inspection Report prepared by Xxxxxxxxx Xxxxx,
Architect;
(h) copies of notes, mortgages and any other existing financing
documents;
(i) termite report;
(j) all applicable organizational and governing documents for
Seller including partnership agreements, certificates of limited partnership,
certificate of good standing, incumbency certificate, articles of organization,
regulations and operating agreement (for an LLC);
(k) current environmental audits prepared by EnviroAssessments,
Inc.; and
(l) summary letter from the Division of Florida Land Sales,
Condominiums and Mobile Homes of the Department of Business and Professional
Regulation regarding the Prospectus for the Property.
The foregoing shall be collectively deemed the "Key
Documents".
4. REPRESENTATIONS AND WARRANTIES.
(a) To induce Buyer to enter into this Agreement, Seller makes
the following representations and warranties, to the best of Seller's knowledge
and belief, all of which, except as otherwise provided herein, shall survive the
Closing of title for a period of one year from the Closing Date (hereinafter
defined):
(i) Seller is a validly existing and organized
limited partnership under the laws of the State of Pennsylvania, is in good
standing and authorized to do business in Florida, and has full power, authority
and legal right to execute and deliver, and to perform its obligations under
this Agreement, and such execution, delivery and performance will not conflict
with or result in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
by which it is bound, or by any of the provisions of any contract to which
Seller is a party or by which it is bound.
(ii) This Agreement and the obligations hereunder are
legal, valid and binding obligations of Seller, enforceable in accordance with
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their terms, all required action and approvals have been duly taken and
obtained, and there are no claims, defenses, personal or otherwise, or offset
whatsoever to the enforceability or validity hereto.
(iii) All of the items, lists and copies supplied or
made available to Buyer by Seller and his agents under this Agreement,
including, but not limited to, the Key Documents, are all of such items and are
true and correct (to the extent prepared by Seller or its employees), complete
and current list and copies as of the date furnished. The agreements,
representations and warranties made by Seller in this Agreement, in the
documents, instruments, reports and other information delivered to Buyer
hereunder, shall each be true and correct in all material respects on and as of
the Closing Date (provided, to the extent any document, instrument or report
delivered or made available to Buyer hereunder was not prepared by Seller or its
employees, Seller does not warrant the correctness of, or the information
contained in, such document, instrument or report, but only that it is a true
and complete copy of such document, instrument or report, prepared by such third
party and that Seller has no actual knowledge that any information contained
therein is not true and correct), with the same force and effect as though they
had been made or given on and as of the Closing Date, subject only to the
qualifications that on the date of closing, Seller may update any of such
documents, instruments, reports and other information to accurately reflect only
such changes therein between the date hereof and the Closing Date as have
occurred in the ordinary course of business or which are permitted by this
Agreement and which, in either event, do not materially or adversely affect the
Property or the operation thereof.
(iv) There are no outstanding claims, notices, orders
or directives delivered to or served upon Seller or its agents, or of which
Seller is aware, issued by any department or agency of any government having
jurisdiction over the Property, or by any private party which is the beneficiary
of any recorded covenant, condition, restriction, easement or other right
affecting the Property ("Private Rights"), alleging or pertaining to any
violation of law, code or ordinance or of Private Rights affecting the Property
or any part thereof, or requiring any work to be done upon or about the Property
or any part thereof. Seller has not received any notice of, and to the best of
Seller's knowledge there are no violations of any law, permit, code or ordinance
or Private Rights affecting, pertaining to or committed on the Property or any
portion thereof.
(v) Based on that certain owner's title commitment
issued by Lawyers Title Insurance Corporation in connection with this
transaction, and without any knowledge of Seller to the contrary, Seller has
good, marketable, insurable and indefeasible fee simple title to the Real
Property, 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 current taxes, zoning regulations and those title
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exceptions listed and described on Exhibit "C" attached hereto (the "Permitted
Exceptions").
(vi) Seller has received no notice of any pending or
threatened condemnation or similar proceeding affecting the Real Property or any
part thereof and Seller has no knowledge that any such proceeding is presently
contemplated; and the Property is free from damage or destruction due to any
casualty loss except if described in the Inspection Report prepared by Xxxxxxxxx
Xxxxx Architect.
(vii) *Seller has substantially complied with and the
Property is in material compliance with, all applicable laws, ordinances,
regulations, orders, rules and restrictions pertaining to or affecting the
ownership and operation of the Real Property and the sale thereof contemplated
by this Agreement, including, but not by way of limitation, the Florida Mobile
Home Act (Chapter 723, Florida Statutes) and, in particular ss. 723.011 and ss.
723.071 thereof.
(viii) *Seller has complied with and the Property is
in compliance with the Florida Mobile Home Act (Chapter 723, Florida Statutes)
and, in particular, Sections 723.011 and 723.071 thereof.
(ix) There are no actions, suits or other legal or
administrative proceedings, including bankruptcy proceedings, pending or
actually threatened, against or involving Seller or the Property and Seller is
not aware of any facts which might result in any such action, suit or other
proceeding.
(x) No goods or services have been contracted for by
Seller or furnished to the Real Property on Seller's behalf which might give
rise to any mechanic's liens upon or affecting all or any part of the Real
Property.
(xi) The right to assign the name "Park Royale Mobile
Home Park" by which the Property is commonly known and to use that name in the
operation of the Property has been assigned by the Seller to Buyer without
warranty, provided, however, that Buyer shall not be legally bound or under any
legal obligation to use said name.
(xii) There are no leases which affect the Real
Property except as set forth in the rent roll ("Rent Roll") delivered to Buyer
(the "Leases") and the information contained on the Rent Roll is true and
correct. All extensions and concessions are set forth on the Rent Roll. The form
lease attached to the Prospectus delivered to Buyer is a true copy of the
current lease form presently used for tenant Leases, complete with all
amendments, modifications, options and extensions thereto.
(xiii) All of the security deposits, which term shall
include any interest required to be paid thereon, if any, in regard to the
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Property, to which any tenants may have a claim, will be paid to Buyer on the
date of Closing or will be applied in reduction of the payment due Seller at
such time; thereafter, the responsibility for security deposits will be that of
Buyer. Seller agrees to provide Buyer with an itemized schedule of such security
deposits on the Closing Date.
(xiv) Seller has not received actual notice of any
pending proceedings before any legal or administrative agency having
jurisdiction over the Property with respect to any increase of real estate taxes
or other assessments on the Property; to Seller's knowledge, there are no
existing or pending assessments for public or capital improvements or the like;
(xv) *A prospectus of the type required under Chapter
723, Florida Statutes, has been provided, as applicable, to each tenant of the
Property. The Prospectus for the Property most recently approved by the Division
of Florida Land Sales, Condominiums and Mobile Homes contains all the terms and
conditions that all tenants on the Property are operating under.
(xvi) Seller has not contracted for any services or
employment and has made no commitments or obligations therefor which will bind
Buyer as a successor in interest with respect to the Property except those
contracts listed in Exhibit "D" (the "Service Contracts"). At closing, Seller
shall assign to Buyer all of its right, title and interest in and to the Service
Contracts and warranties and guaranties; provided, however, that Buyer shall
have the right after closing hereunder to terminate any such Service Contracts
as of the Closing Date, unless termination is prohibited in any such Service
Contract. Amounts paid or payable under the Service Contracts shall be prorated
between the parties at the Closing and credits shall be given the parties as
appropriate to such prorations.
(xvii) *The current use of the Property, the Leases,
Prospectuses and rules and regulations are in compliance with the Florida and
Federal Fair Housing Acts. Seller further represents and warrants that the use
of the Property, the Leases, Prospectuses, and rules and regulations qualify the
Property for the exemptions for housing for older persons under the Fair Housing
Act of 1988 and the Florida Civil Rights Act, and substantially comply in all
material respects with the rules published by the Department of Housing and
Urban Development, specifically including, but not limited to, having
significant facilities and services specifically designed to meet the physical
or social needs of older persons.
(xviii) No rents or other deposits are or will on the
Closing Date be held by Seller, except for prepaid rents for the current month
(which shall be prorated at Closing); and no commissions or other fees payable
to any person, entity or agent are due on the rentals collected or to be
collected under the Leases.
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(xix) Based on certificates, licenses, permits and
approvals, currently existing, including, as applicable, the Key Documents, the
Property is and may be used for its current operation as a rental mobile home
community and for the purposes for which the improvements thereon were
constructed and may continue to operate, based upon laws and ordinances in
effect on the date hereof, without violating any federal, state, local or any
other governmental building, zoning, environmental, health, safety, platting,
subdivision or other statute, ordinance or regulation or any applicable private
restriction; and necessary permits for such use and operation have been obtained
and are in full force and effect. No notice of violation of any of the foregoing
has been received by Seller.
(xx) Based on the survey prepared for the Property,
no building or other improvement on the Property relies on any premises other
than the Property to fulfill any governmental or applicable private requirement,
except for appurtenant easements of record.
(xxi) To the best of Seller's knowledge and belief,
based upon existing certificates of occupancy and other certificates, licenses,
permits, approvals and current zoning letter, all improvements on the Property
fully conform in all material respects with all zoning regulations and building
codes applicable at the time of their issuance (and Seller has received no
notice of any changes that are required to be implemented at the Property) and
with all private restrictions, and none of the buildings or improvements located
on the Property are prior non-conforming structures under the current applicable
zoning regulations.
(xxii) The Property is currently served by public
utility services, including, but not limited to, electrical, water, sanitary
sewer, cable television, and telephone services, which services have been and
presently are adequate and sufficient for operation of the buildings and
improvements on the Property at full occupancy.
(xxiii) *Seller hereby represents and warrants that
during the period of its ownership and control over the Property, Seller has not
knowingly permitted, and Seller has no knowledge of, (other than anything
disclosed in the Environmental Site Assessment prepared by EnviroAssessments,
Inc.) the presence, disposal, release or threatened release of any Hazardous
Substance (as hereinafter defined) on, into, from or under the Property or
improvements constructed thereon, by or through Seller, any tenant (present or
former) or any party whatsoever. As used in this Agreement, the term "Hazardous
Substance" means any waste oil, solvent mixture, or any hazardous, toxic or
dangerous substance, waste or material which is or becomes regulated under any
federal, state or local statute, ordinance, rule, regulation or other law now or
hereafter in effect pertaining to environmental protection, contamination or
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clean-up, including without limitation any substance, waste or material which
now or hereafter is (i) designated as a "solid or hazardous substance" under or
pursuant to the Federal Water Pollution Control Act (33 U.S.C. ss. 1257 et
seq.), (ii) defined as a "hazardous waste" under or pursuant to the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), (iii) defined as a
"hazardous substance" in (or for purposes of) the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. ss. 9601 et seq.), (iv)
defined as a "hazardous air pollutant" under or pursuant to the Federal Clean
Air Act (42 U.S.C. ss. 7401 et seq.), (v) defined as a hazardous, toxic or
dangerous substance under or pursuant to any so-called "Superfund" or
"Superlien" law, (vi) defined or listed as a "hazardous waste," "extremely
hazardous waste," "restricted hazardous waste," "infectious waste," "pollutant,"
"hazardous substance," "hazardous material," "petroleum product," or "pollutant"
under or pursuant to Florida's statutes and regulations, including without
limitation, Chapter 376, Florida Statutes.
(xxiv) *Seller further represents that, to Seller's
knowledge (based solely on actual knowledge of Seller and upon existing
environmental assessments, reports and studies prepared by EnviroAssessments,
Inc.) there was no presence, disposal, release or threatened release of any
Hazardous Substance on, from, or under the Property prior to Seller's
acquisition of ownership or control of the Property.
(xxv) *Seller further represents and warrants that to
Seller's knowledge and based on that certain environmental assessment report
prepared by EnviroAssessments, Inc., the Property (including underlying soil and
groundwater conditions) is not currently in violation of any state, local,
federal or other law, statute, regulation, code, ordinance, decree or order
relating to hygienic or environmental conditions, and that during Seller's
ownership of the Property, to Seller's knowledge, no party has used, generated,
stored, or disposed of any flammable explosives, radioactive materials,
Hazardous Substance, toxic substances or related materials, on, under or about
the Property, except, if any, in accordance with applicable law.
For purposes hereof, the terms "disposal", "release", and "threatened
release" shall mean and include the definitions thereof set forth in the
Comprehensive Environmental Response, Compensation and Liability Act and all
other federal, state, county, local and other laws, ordinances, codes, statutes,
rules, regulations, decrees and orders relating to or imposing liability or
standards of conduct regarding environmental or hygienic matters.
(xxvi) *Seller represents, warrants, acknowledges and
agrees that the representations and warranties contained in that certain
Indemnity Agreement that Buyer is required to provide to Pacific Mutual Life
Insurance Company (a copy of which is attached hereto as Exhibit "F") in
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connection with assumption of the Mortgage on the Property are true and correct
and Seller makes such representations and warranties contained in such Indemnity
Agreement to Buyer which are incorporated herein by reference (as made from
Seller to Buyer).
(xxvii) No persons or entities have any rights to use
any improvements or amenities situate on the Property, with the exception of any
easements shown on the owner's title commitment issued in connection with this
transaction, any items shown on the current survey of the Property, tenants of
the Property under the Leases and the rights of the respective lessees under the
cable lease, if any.
(xxviii) *Based on the current zoning letter for the
Property, and with no reason to suspect otherwise and with no actual notice to
the contrary, the present use of the Property as a rental mobile home community
with all existing amenities is a valid and permitted use under the zoning and
land use codes applicable to the Property. In the event of a casualty, the
current improvements and use of the Property could be rebuilt, including the
current existing density and current approved density.
(xxix) Seller owns no right of first refusal or
option or similar rights regarding the purchase of any property contiguous to
the land described in Exhibit "A" hereto and if Seller shall obtain any of the
same prior to Closing, Seller covenants to so advise Buyer, and Buyer at its
option, may require from Seller at Closing an assignment of such rights, without
payment of additional consideration.
(xxx) *Based on, and except as disclosed in that
certain Inspection Report prepared by Xxxxxxxxx Xxxxx Architect, the Property,
to the extent applicable, and with no knowledge of such to the contrary, is in
compliance with the Americans With Disabilities Act and Chapter 553 Florida
Statutes and the Federal Fair Housing Act.
Notwithstanding anything to the contrary contained herein, the
representations and warranties in paragraph 4(a) above which are noted with an
asterisk (*) shall survive Closing and shall not be limited by the one-year
survival language contained in paragraph 4(a) above.
(b) Buyer has the right, power and authority to enter into this
Agreement and to perform its obligations hereunder and the persons executing
this Agreement on behalf of Buyer have been duly authorized by Buyer to do so.
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5. TITLE INSURANCE.
(a) Seller has, at Seller's expense, delivered to Buyer and
Buyer's attorney with a copy provided to Seller's attorney, a preliminary
owner's title insurance commitment, together with copies of all exception
documents referred to therein, to be issued by a title insurance company
licensed and qualified to do business in Florida and approved by Buyer. The
commitment and policy 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 amount of the Purchase Price. The policy and commitment shall be in a
current ALTA standard form "B", except that there shall be no exceptions unless
agreed to by Buyer. All standard title policy exceptions shall be deleted. The
policy shall insure marketable title.
(b) The agent for the title insurance company shall be in
attendance at the closing and be in a position to issue the title policy upon
recording the appropriate documents and insure that Seller has complied with all
requirements set forth under Florida Statutes 723.071(1), (2) and (3) to
extinguish any right of purchase or rescission in favor of any tenants or
homeowners association, if any, upon the execution and delivery of the statutory
affidavit to be executed by Seller and to insure the Real Property free and
clear of all exceptions to title other matters not objected to by Buyer.
6. SURVEY. Buyer has at its expense obtained a current survey of the
Real Property.
7. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNITIES. The
representations and warranties of Seller contained in this Agreement shall be
true and correct on the Closing Date. Seller, by having closed the sale of the
Property, shall be deemed conclusively to have certified that as of the Closing
Date all such representations and warranties were true and correct on the
Closing Date.
8. CLOSING. The sale and purchase transaction contemplated by this
Agreement shall be closed and consummated on or before May 14, 1997 (the
"Closing Date"). Closing shall be at the offices of Buyer's counsel or, at
Buyer's option, may be effected through the mail as coordinated by counsel for
Seller and Buyer. The closing shall be at 10:00 A.M. on the Closing Date unless
otherwise agreed by the parties or their counsel. At the closing, Seller and, as
applicable, Buyer shall execute and deliver the following documents in form
acceptable to Buyer and/or undertake the following:
(a) All corporate certifications, resolutions and approvals
necessary to evidence both the Seller's and Buyer's authority to enter into and
consummate the transactions contemplated by this Agreement.
(b) General Warranty Deed from Seller to Buyer conveying title
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to the Real Property to Buyer free and clear of all liens, encumbrances and
matters other than matters not objected to in writing by Buyer.
(c) Xxxx of Sale from Seller to Buyer transferring the Personal
Property free and clear of all liens and encumbrances together with the original
Motor Vehicle Certificate of Title (properly endorsed and lien free) for each
mobile home unit and motor vehicle included in this purchase and sale. In the
event Seller does not have the original Motor Vehicle Certificate of Title (or
Manufacturer's Statement of Origin ("MSO")) at closing, Seller covenants and
agrees to deliver to Buyer the original Motor Vehicle Certificate of Title (or
MSO), properly endorsed and lien free, within thirty (30) days after the Closing
Date.
(d) Affidavit of No Liens by Seller.
(e) Gap Affidavit by Seller.
(f) Affidavit of Non-Foreign Status by Seller.
(g) Affidavit of Compliance by Seller in conformity with
Chapter 723.072, Florida Statutes, and attesting that Seller has complied with
all applicable provisions of Chapter 723 and all other applicable Florida and
Federal laws and regulations relating to mobile home park communities.
(h) Certified rent roll dated and accurate as of the Closing
Date and certified by Seller to Buyer.
(i) Assignment from Seller to Buyer assigning all of Seller's
right, title and interest, to the extent it exists and without representation or
warranty, in and to the name by which the Property is commonly known, and in all
authorizations, permits, and licenses relating to the operation of the Property
which are assignable by Seller, if any, and all Leases, Service Contracts and
other items required to be assigned as set forth in this Agreement free and
clear of all liens and encumbrances except for the matters permitted in this
Agreement; all of which shall be assumed by Buyer effective from and after the
Closing Date. Seller shall undertake all action, and execute all forms, required
by all governmental authorities and contract vendors to effect this assignment.
(j) Assignment by Seller, to the extent they exist and without
representation or warranty, of all currently existing and effective claims,
guaranties, warranties, indemnifications and all other rights, if any, which
Seller may have against suppliers, laborers, materialmen, contractors, or
sub-contractors arising out of or in connection with the installation,
construction and maintenance of the Property; all of which shall be assumed by
Buyer effective from and after the Closing Date.
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(k) Assignment by Seller, to the extent they exist to Buyer of
all agreements and rights, if any, which Seller has for access and utilities to
service the Property; all of which shall be assumed by Buyer effective from and
after the Closing Date.
(l) Seller covenants and agrees to transfer, or cause to be
transferred, to Buyer or to Buyer's designee, at closing or within sixty (60)
days after closing, the Motor Vehicle Dealer Licenses utilized in connection
with the Property.
(m) Closing Statement by Seller and Buyer.
(n) Such other documents as are reasonably necessary to close
and consummate the purchase and sale transaction contemplated by this Agreement.
(o) Seller shall deliver and assign to Buyer all existing plans
and specifications, marketing, engineering, architectural, and environmental
reports, site plans and advertising brochures relating to the improvements
located upon the Property which are in Seller's possession or reasonably
accessible to Seller.
(p) Seller shall deliver and assign to Buyer all of Seller's
right, title and interest, if any, in and to all licenses, approvals, permits,
certificates of occupancy, impact fee credits, mobile home titles (for Seller
owned mobile home units, if any) and such other comparable certificates or
documents issued by the appropriate governmental authorities with respect to the
Property or any part thereof which are legally assignable by Seller, if any.
(q) Buyer shall deliver to Seller the adjusted cash portion of
the Purchase Price and authorize Escrow Agent's delivery of the Xxxxxxx Money
Deposit to Seller. Said sum shall be paid, at Buyer's election, by locally drawn
cashier's check or Federal Reserve Bank wire transfer.
9. CLOSING COSTS. Seller shall pay for the cost of any corrective
documents required for marketable and insurable title and the recording of the
Warranty Deed, the documentary stamps on the Warranty Deed, all premiums, costs
and fees associated with the issuance of the title binder and policy. Buyer
shall pay for the survey and any environmental audits and other studies ordered
by Buyer. Each party shall bear its own attorneys' fees and other professional
costs, except as otherwise provided for herein.
10. PRORATIONS. Except as otherwise set forth in this Agreement, all
taxes and other operating expenses and revenue of the Property shall be prorated
as of the Closing Date. Taxes shall be prorated based upon the current year's
tax taking into account the maximum available discount. If the closing takes
place and the current year's taxes are not fixed and the current year's
assessment is available, taxes shall be prorated based upon such assessment and
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the prior year's millage. If the current year's assessment is not available,
then taxes shall be prorated on the prior year's tax taking into account the
maximum available discount. In the event the tax proration is incorrect on the
Closing Date because the property is reassessed for the tax year 1997 by
Pinellas County subsequent to the Closing Date, Buyer or Seller shall be
entitled, as the case may be, to a reproration of such taxes upon written
request made to the other party. Seller or Buyer shall remit the reproration
adjustment amount requested within thirty (30) days of request therefor. In the
event Seller or Buyer fails to remit the reproration amount requested within
said thirty (30) day period, the party seeking reimbursement shall be entitled
to all costs of collection, including all attorneys' fees and costs incurred in
collection thereof and the amount owing shall bear interest at the rate of
fifteen percent (15%) until paid, it being acknowledged that this right shall
survive closing and delivery of the Deed. Certified, ratified and confirmed
special assessments shall be paid by Seller. Special assessment liens pending as
of the Closing Date shall be assumed by Buyer. Any rents received by Seller in
respect of the period after the Closing Date shall be promptly remitted to
Buyer. With regard to delinquent rents, if any, Buyer shall not be held
responsible for and Buyer shall not be required to institute any proceedings
whatsoever to collect such delinquent rents. All rents collected by Buyer during
the first ninety (90) days after closing shall be first applied to current rents
due and then to any delinquency. This obligation to remit shall survive the
Closing and delivery of the Deed for a period of ninety (90) days. Seller shall
deliver to Buyer at the closing copies of such statements, invoices, bills and
receipts as shall be requested by Buyer to enable Buyer to verify the accuracy
of the amounts of any prorations made pursuant to this paragraph. Buyer shall be
credited at closing with all advance rentals and tenant security deposits
previously paid to Seller. All prorations shall be made so that Seller has the
benefit of all income and the burden of all expenses up to and including the
Closing Date and Buyer has the benefit of all income and the burden of all
expenses after the Closing Date.
11. PERSONAL PROPERTY. Seller represents that it is the owner of all
of the Personal Property free and clear of any and all liens and encumbrances
other than mortgages, security agreements and financing statements which are to
be released or satisfied of record at or prior to Closing hereunder. Seller
agrees that it shall not remove from the Real Property any of the Personal
Property currently used or useful in connection with the operation of the Real
Property as a rental mobile home community except as may be required in the
ordinary course of business for repair or replacement; any such replacement of
an item of Personal Property pending Closing hereunder to be with a similar item
or items of Personal Property of equal quality and quantity and free and clear
of any liens and encumbrances other than mortgages, security agreements and
financing statements to be released or satisfied of record at or prior to
Closing hereunder.
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12. CONDEMNATION. If, prior to closing, all or any part of the Real
Property is taken by any governmental authority under its power of eminent
domain, Buyer shall have the option, to be exercised within ten (10) days after
Buyer receives written notice from Seller of same:
(a) To take title to the Property at closing without any
abatement or adjustment in the Purchase Price, in which event Seller shall
unconditionally assign its rights in the condemnation award to Buyer (or Buyer
shall receive the condemnation award from Seller if it has already been paid to
Seller prior to closing); or
(b) To terminate this Agreement, whereupon the duties and
obligations of each of the parties hereto shall end and Buyer shall be entitled
to the prompt return from Escrow Agent of the Xxxxxxx Money Deposit and all
interest earned thereon.
13. RISK OF LOSS. Risk of loss by damage or destruction to the
Property prior to closing shall be borne by Seller. In the event of substantial
damage (i.e. in an amount in excess of $100,000.00) to said Property prior to
the closing by fire or other casualty:
(a) Seller shall give prompt notice of such damage to Buyer;
(b) Seller shall furnish Buyer promptly with an estimate of the
cost of the restoration, replacement or repair of such damage; and
(c) Buyer shall have the option to:
(i) terminate this Agreement and obtain the prompt
return from Escrow Agent of its Xxxxxxx Money Deposit and all interest earned
thereon; or
(ii) take title to the Property at closing without
any abatement or adjustment in the Purchase Price, in which event Seller shall
unconditionally assign its rights in any insurance proceeds to Buyer (or Buyer
shall receive the insurance proceeds paid to Seller if they have already been
paid prior to closing), together with payment from Seller to Buyer of the amount
of the deductible under any of Seller's insurance policies.
14. ASSIGNMENT OF NAME. At closing, Seller shall assign to Buyer,
without limitation, all of its right, title and interest in the name by which
the Property is commonly known hereinbefore referred to.
15. SUPPLIES. Inventories of supplies, including but not limited to
paint, toilet tissue, soap, paper towels and all cleaning materials, if any
located on the Real Property on the Closing Date shall be transferred to Buyer
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at no additional cost at the time of closing and shall be covered by the Xxxx of
Sale.
16. INDEMNITY. Seller agrees to indemnify and hold Buyer harmless of
and from all loss, cost, damage and expense of every kind, including reasonable
attorneys' fees, which Buyer shall sustain or become liable for resulting from
(a) breach of any covenant, representation or warranty contained in this
Agreement; or (b) Seller's ownership of the Property. Buyer agrees to indemnify
and hold Seller harmless of and from all loss, cost, damage and expense of every
kind, including reasonable attorneys' fees, which Seller shall sustain or become
liable for resulting from Buyer's ownership of the Property from and after the
Closing Date. The foregoing indemnity and all other indemnities contained in
this Agreement shall survive closing.
17. DEFAULT BY SELLER. If, under the provisions of this Agreement,
Seller shall be obligated to complete the sale of the Property but fails to do
so within the applicable period provided for closing and such default continues
for a period of fifteen (15) days after written notice thereof from Buyer to
Seller, or shall otherwise fail to perform any of the other obligations of
Seller hereunder within the required time period, Buyer shall have the option,
to be exercised in its sole discretion, to: (a) apply to the Circuit Court of
the County where the Real Property is located to seek to have specific
performance under this Agreement and in such action shall have the right to
recover damages suffered by Buyer by reason of the delay in Buyer's acquisition
of the Property; or (b) xxx Seller for damages sustained by Buyer by reason of
the default of Seller provided; or (c) obtain the prompt return from Escrow
Agent of the Xxxxxxx Money Deposit, with interest, together with any other
amounts due and owing to Buyer pursuant to the terms of this Agreement, and
thereafter terminate this Agreement.
18. DEFAULT BY BUYER. If, under the provisions of this Agreement,
Buyer shall be obligated to complete the purchase of the Property but fails to
do so within the applicable period provided for closing, and such default
continues for a period of fifteen (15) days after written notice thereof from
Seller to Buyer, Seller's sole right and exclusive remedy against Buyer shall be
to obtain the Xxxxxxx Money Deposit (a) as consideration for the execution of
this Agreement; (b) as agreed on liquidated damages sustained by Seller because
of such default by Buyer (the parties hereto agreeing that the retention of such
funds shall not be deemed a penalty, and recognizing the impossibility of
precisely ascertaining the amount of damages to Seller because of such default
and hereby declaring and agreeing that the sum so retained is and represents the
reasonable damages of Seller); (c) in full settlement of any claims of damages
and in lieu of a specific performance by Seller against Buyer; and (d) in
consideration for the full and absolute release of Buyer by Seller of any and
all further obligations under this Agreement. In the event Buyer defaults
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hereunder, Buyer shall forthwith on demand by Seller return to Seller all title
papers and other documents relating to the Property, including Buyer's copy of
this Agreement.
19. FLORIDA MOBILE HOME ACT. Seller has previously delivered to Buyer
a true and complete copy of all applicable versions of the prospectus or
offering circular with respect to the Property required under ss.723.011 of the
Florida Mobile Home Act. At the closing, Seller shall deliver to Buyer an
executed original of the affidavit contemplated by ss.723.072 of said Act.
Seller further agrees to promptly deliver to Buyer, upon Buyer's request, such
other evidence of compliance with said Act and with all other relevant State and
Federal laws and regulations relating to mobile home park communities as Buyer
may reasonably require.
20. BROKER'S COMMISSION. Seller and Buyer each warrant that there are
no real estate or other brokers involved in this transaction and each party
shall indemnify and hold harmless the other party from all claims or damages for
any brokerage commissions and/or fees being claimed arising out of this
transaction resulting from the actions of the defaulting party.
21. ASSIGNMENT. Buyer shall have the right to assign this Agreement
without the prior written consent of Seller to a single asset entity owned or
controlled by Asset Investors Operating Partnership, L.P., a Delaware limited
partnership ("AIOP"). In the event of an assignment to an entity owned or
controlled by AIOP, Buyer shall have no further liability or responsibility
under this Agreement.
22. SURVIVAL OF AGREEMENT. The terms and conditions of this Agreement
which expressly so state shall survive the closing hereof.
23. TIME IS OF THE ESSENCE. Seller and Buyer acknowledge that time is
of the essence of this Agreement.
24. MODIFICATIONS. The parties acknowledge that this Agreement is the
entire agreement between the parties with respect to the subject matter hereof
and that this Agreement cannot be modified without a written agreement executed
by both parties.
25. ATTORNEYS' FEES. In the event of any litigation between the
parties arising out of this Agreement, or the collection of any funds due Buyer
or Seller pursuant to this Agreement, the prevailing party shall be entitled to
recover all costs incurred and reasonable attorneys' fees and expenses incurred.
As used herein and throughout this Agreement, the term "attorneys' fees" shall
be deemed to include all fees incurred whether by attorneys, paralegals, legal
assistants or law clerks whether in pretrial, trial, appeal, bankruptcy,
collection or declaratory proceedings. The provisions of this paragraph shall
survive closing and delivery of the deed.
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26. ESCROW AGENT. The sole responsibility of the Escrow Agent shall be
to deposit the Xxxxxxx Money Deposit in an account and documents necessary to do
so and to disburse said funds according to the terms of this Agreement. In the
event of a breach of this Agreement by either Seller or Buyer, or if, in the
sole discretion of the Escrow Agent, some doubt exists as to when, to whom or
under what circumstances such Xxxxxxx Money Deposit shall be disbursed
hereunder, and the parties hereto are unable after ten (10) days' prior written
notice thereof from Escrow Agent to agree and direct Escrow Agent, in writing,
as to when, to whom or under what circumstances Escrow Agent shall disburse the
same, Escrow Agent shall be entitled to interplead said Xxxxxxx Money Deposit
into the Circuit Court of Pinellas County, Florida, without further liability or
responsibility on its part. Costs, expenses and attorneys' fees incurred by
Escrow Agent in connection with any such interpleader may be deducted by Escrow
Agent from the amount of the Xxxxxxx Money Deposit prior to its deposit into the
registry of the Court. In any event, however, all parties agree that Escrow
Agent shall have no liability or any further responsibility to any party or
person whomsoever for any disbursement of the Xxxxxxx Money Deposit made by
Escrow Agent in good faith unless such disbursement shall constitute a willful
breach of the duties and obligations of Escrow Agent under this Agreement or
gross negligence on the part of Escrow Agent. Buyer acknowledges that Escrow
Agent is the attorney for Seller and agrees that Escrow Agent may represent
Seller in connection with any dispute arising under this Agreement
notwithstanding such service as Escrow Agent under this Agreement. The interest
received on the Xxxxxxx Money Deposit shall be applied to the account of Buyer
at closing. The Escrow Agent has executed the receipt attached to this Agreement
to confirm that the Escrow Agent is holding and will hold and disburse funds
paid in respect of the Purchase Price in escrow pursuant to the provisions of
this Agreement and as directed by the parties in the Settlement (Closing)
Statement.
27. NOTICE. Any notice, request, instruction or demand to be given
hereunder shall be given as follows:
If to the Seller:
To: FAE Mobile Home Properties (1974)
Address: 0 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With copies to attorney for Seller:
To: Xxxxxx X. Xxxxxx, Esq.
Address: Xxxxxx X. Xxxxxx, P.A.
0000 XxXxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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If to the Buyer:
To: Xx. Xxxxxx X. Xxx, President
Address: Asset Investors Operations Partnership, L.P.
0000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
With copies to attorney for Buyer:
To: Xxxxxxx X. Xxxxxxxx, Esquire
Address: Annis, Mitchell, Cockey, Edwards,
and Roehn, P.A.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Escrow Agent:
Escrow Xxxxx X. Xxxxxxxxx, Esquire
Agent: Xxxxx, McClosky, Smith, Xxxxxxxx
Address: & Russell, P.A.
000 Xxxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
28. NO ASSUMPTION OF LIABILITIES. The parties acknowledge that this
transaction contemplates only the sale and purchase of the Property and that the
Seller is not selling a business nor do the parties intend that Buyer be deemed
a successor of Seller with respect to any liabilities of Seller to any third
parties. Accordingly, in addition to the other terms and conditions of this
Agreement, Buyer shall neither assume nor be liable for any payments and
benefits to past and/or present employees of Seller in connection with the
business being conducted on or from the Property as may have accrued through the
Closing Date, including, but not limited to, salaries, wages, commission,
bonuses, vacation pay, health and welfare contributions, pensions, profit
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sharing, severance or termination pay, taxes or any other form of compensation
or fringe benefit.
29. CONSTRUCTION. This Agreement has been negotiated between the
parties, each of whom have been represented by counsel. Accordingly, this
Agreement shall not be construed against either party as the drafter of the
Agreement in the event of any litigation with respect to it.
30. RADON GAS 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 obtained from
your county public health unit.
The foregoing notice is provided pursuant to ss. 404.056(8),
Florida Statutes (1992), which requires that such notice be included in certain
real estate documents.
31. VENUE. Venue for any legal proceeding hereunder shall be in
Pinellas County, Florida, except with respect to an interpleader action pursuant
to paragraph 26 hereunder which the parties acknowledge shall be instituted in
Pinellas County, Florida, pursuant to said paragraph.
32. WAIVER OF JURY TRIAL. Seller and Buyer knowingly, voluntarily and
intentionally waive any right to trial by jury in respect to any litigation
arising out of, under or in connection with this Agreement or the transaction
described herein.
33. EFFECTIVE DATE. Unless otherwise set forth herein, the Effective
Date shall be the date on which the later of Seller and Buyer executes this
Agreement, as evidenced by the date inserted below the signature block.
34. PARTIAL INVALIDITY. If any term or provision of this Agreement
shall be held illegal, unenforceable or inoperative as a matter of law, the
remaining terms and provisions of this Agreement shall not be affected thereby,
but each such term and provision shall be valid and shall remain in full force
and effect.
35. COUNTERPART EXECUTION. This Agreement may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
36. FACSIMILE. A facsimile of this Agreement or any portion hereof,
including the signature page of any party, shall be deemed an original for all
purposes.
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37. SEC AND IRC. Seller agrees to cooperate with Buyer prior to and
after Closing in providing such information as is required by the Internal
Revenue Code and by the regulations of the Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year indicated below.
WITNESSES: [SELLER], a ______
WITNESSES: FAE MOBILE HOME PROPERTIES (1974),
Pennsylvania limited partnership
authorized to transact business in
the state of Florida as FAE MOBILE
HOME PROPERTIES (1974), A LIMITED
PARTNERSHIP
/s/Xxxx X. Xxxxxx By: BRANDYWINE CORPORATION, a
Print Name: Xxxx X. Xxxxxx Delaware corporation authorized
to transact business in the
/s/Xxxx Duoranemski state of Florida as BRANDYWOOD
Print Name:Xxxx Duoranemski CORPORATION, its sole general
partner
By: /s/Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx,
President
As to Seller "Seller"
SELLER'S EXECUTION DATE: May 13, 1997
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HFIC INC., a Missouri
corporation
___________________________ By:/s/Xxxxxxx Xxxxx
___________________________ ------------------------------------
Print Name:________________ Print Name: Xxxxxxx Xxxxx
Title: Vice President
___________________________
Print Name:________________
As to Buyer "Buyer"
BUYER'S EXECUTION DATE:_______________
6374-001-0416130.01
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