AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into as of this the twenty eighth day of March, 1997, by and between
Prairie-Middlebury Associates, an Indiana general partnership (the "Seller"),
and Homes for America Holdings, Inc., a Nevada corporation (the "Purchaser").
W I T N E S S E T H :
WHEREAS, Seller is the fee simple owner of all of that certain parcel
of real property consisting of approximately ninety eight thousand one hundred
eighty (98,180) square feet located at 740 Prairie / 000 Xxxxxxxxxx, Xxxxxxx,
Xxxxxxx 00000, identified as Census Tract No. 0019.10, and as more particularly
described on Exhibit A attached hereto and incorporated herein, together with
all buildings and improvements situated thereon, including without limitation
the one hundred twenty (120) apartment units in the buildings known as "Prairie
Village Apartments", all right, title, and interest of Seller in and to any land
lying in the bed of any existing dedicated street, road, or alley adjoining
thereto, all strips and gores adjoining thereto, and all rights, ways,
easements, privileges, and appurtenances thereunto belonging (the "Property");
and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the
Property on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser
hereby agree as follows:
Section 1. Agreement to Sell and Purchase. Seller agrees
to sell and Purchaser agrees to purchase the Property on the terms and
conditions hereinafter set forth.
Section 2. Purchase Price and Terms. The Purchase Price of the Property
shall be eight hundred four thousand dollars ($804,000)(the "Purchase
Price").
The Purchase Price shall be payable as follows:
a. Deposit.
(1) Initial Amount. Immediately upon the full execution and
acceptance of this Agreement by both Seller and Purchaser (the "Effective
Date"), Purchaser shall deposit in escrow with York Title & Escrow of Elkhart,
Inc., Elkhart, Indiana (the "Escrow Agent"), cash in the amount of ten thousand
dollars ($10,000)(the "Deposit").
(2) Investment of Deposit. The Escrow Agent shall invest
such cash in such obligations or accounts as Purchaser may from time to time
direct, with the reasonable approval of Seller. Any and all income earned on
such investments shall be and become part of the Deposit.
(3) Release of Deposit. The Deposit shall (i) be returned to
Purchaser at closing hereunder or, at Purchaser's option, be applied at closing
to the purchase price of the Property, (ii) be paid to Purchaser upon
termination by Purchaser under Section 3c after five (5) business days advance
written notice from the Escrow Agent to Seller, (iii) be returned to Purchaser
prior to closing hereunder in the event this Agreement terminates in accordance
with its terms other than Section 3c, or (iv) be released to Seller upon
presentation to Escrow Agent of a written certification, executed by Seller,
stating that Purchaser has defaulted hereunder, that Seller has given Purchaser
written notice of such default and five (5) business days from receipt of such
notice to cure such default, and that such default has not been cured within
that five (5) business day period.
b. Cash at Closing. At Closing hereunder, Purchaser shall pay in
cash or by wire transfer of federal funds an amount equal to the Purchase Price,
of which sum the Deposit, at Purchaser's option, shall be a part.
Section 3. Investigation of Property.
a. Delivery of Documents. To the extent not already delivered,
within seven (7) days after the Effective Date, Seller shall deliver to
Purchaser copies of all documents relating to the Property that exist in the
care, custody, or control of Seller (or its management agent) or that can be
prepared readily from such documents: [for items (i) - (iv) include previous two
fiscal years and year to date] (i) actual operating statements; (ii) rent roll
showing actual collections and vacancies; (iii) itemized list of capital
expenditures; (iv) real property assessment notices and tax bills; (v) mortgage
and mortgage note for any financing secured by the Property; (vi) surveys and
title insurance reports and policies; (vii) environmental, engineering,
architectural or zoning documents, tests, or reports; (viii) contracts having a
value as an annual expense in excess of $2,500 or continuing for a term in
excess of one year or not terminable at will of Seller; (ix) all permits,
certificates of occupancy, or licenses, agreements; and (x) for the residential
leases on the Property (the "Tenant Leases") the form lease(s) used by Seller.
b. Inspection of Property. Purchaser and its agents and
representatives shall have the right to enter onto the Property at all
reasonable times prior to Closing hereunder for purposes of conducting surveys,
soil tests, market studies, engineering tests, and such other tests,
investigations, studies, and inspections as Purchaser reasonably deems necessary
or desirable to evaluate the Property, provided that (i) all such tests,
investigations, studies, and inspections shall be conducted at Purchaser's sole
risk and expense, (ii) Purchaser shall give Seller reasonable prior notice of
its entry onto the Property, and (iii) Purchaser shall indemnify and hold Seller
harmless from and against any losses, liabilities, costs, or expenses (including
reasonable attorney's fees) arising out of Purchaser's entry onto the Property.
Purchaser shall return the Property to the condition it was in prior to the
performance of such tests. No investigation pursuant to this Section 3 shall be
deemed a waiver of Seller's representations set forth in Section 7 hereof,
except to the extent that Purchaser learns information contrary to a
representation of Seller.
c. Feasibility Period. In the event that Purchaser is not
satisfied, in its sole and unreviewable judgment and discretion, with the
feasibility of Purchaser's acquisition, financing, and development of the
Property, Purchaser shall have the right to terminate this Agreement. Unless
Purchaser provides written notice to the contrary to Seller and the Escrow Agent
within sixty (60) days after the Effective Date (the "Feasibility Period"),
Purchaser shall be deemed to have elected to exercise that right to terminate.
Upon any such termination the Deposit shall be promptly paid to Purchaser,
Purchaser shall return to Seller all items received by Purchaser pursuant to
Section 3a hereof, and except for the indemnity by Purchaser under Section 3b
hereinabove the parties hereto shall be released from any further liabilities or
obligations hereunder.
Section 4. Title.
a. Condition of Title. At Closing hereunder, Seller shall
convey fee simple title to the Property, marketable, indefeasible, and good of
record and in fact, and insurable as such in an amount equal to the Purchase
Price by such reputable title insurance company as Purchaser may choose, at
regular rates, on an ALTA Form 1990 Owner's Policy, free and clear of any and
all liens, defects, encumbrances, occupancies, leases, easements, covenants,
restrictions, or other matters whatsoever, whether recorded or unrecorded,
except for (i) the Tenant Leases, (ii) the lien of real estate taxes, water
rents, and sewer charges not yet due and payable, (iii) the "Permitted
Exceptions" approved in accordance with Section 4b, and (iv) Title Objections
approved by Purchaser pursuant to Section 4b hereof.
b. Title Objections. Purchaser shall promptly review any title
report or title policy provided by Seller under Section 3a hereinabove
("Seller's Title Report"). Purchaser shall also cause a search of title to the
Property to be made and a survey of the Property to be performed not later than
twenty (20) days after the termination of the Feasibility Period. If Purchaser
shall determine that any matter or matters affecting the Property are
unacceptable, Purchaser shall notify Seller in writing of such matter or matters
(the "Title Objections") within ten (10) business days of Purchaser's receipt of
the respective title report or survey. Within seven (7) days of receipt of such
notification, Seller shall notify Purchaser either that (i) Seller shall correct
such Title Objections, or (ii) Seller shall not correct such Title Objections.
In the event that Seller shall elect to correct such Title Objections, Seller
shall correct such Title Obligations at or prior to Closing hereunder. In the
event that Seller shall elect not to correct such Title Objections, Purchaser
shall have the right, in its sole discretion, either to (i) accept title as is,
or (ii) terminate this Agreement, in which event the Deposit shall be promptly
returned to Purchaser and the parties hereto released from any further
liabilities or obligations hereunder, except that Seller shall pay the
reasonable costs of the title examination ordered by the Purchaser for any
matter not disclosed by the Seller's Title Report. Any matters to which
Purchaser does not object on or before the day thirty (30) days after the
expiration of the Feasibility Period shall be deemed acceptable to Purchaser. In
the event Purchaser notifies Seller of any Title Objections, and Seller fails to
notify Purchaser within the period set forth above of its election to cure or
not cure such Title Objections, Seller shall be deemed to have elected not to
cure such Title Objections. Notwithstanding the provisions of this Section 4b,
Seller shall release at or prior to closing all monetary liens and encumbrances
encumbering the Property.
c. Further Assurances. The Seller covenants that it will, at any
time and from time to time after Closing hereunder for a period not to exceed
one hundred twenty (120) days, upon request of the Purchaser and at the expense
of Purchaser, do, execute, acknowledge, and deliver, or will cause to be done,
executed, acknowledged, or delivered, all such further acts, deeds, conveyances,
and assurances as may reasonably be required for the better conveying,
transferring, assuring, and confirming the conveyance of title to the Property
to the Purchaser in accordance with Section 4a hereof.
Section 5.Closing.
a. Time and Place. Closing under this Agreement ("Closing") shall
be held on the day designated by Purchaser to be no later than the last to occur
of (i) the day sixty (60) days after the expiration of the Feasibility Period
and (ii) June 1, 1997. By mutual agreement the parties may designate another
date for Closing. Closing shall be held at the offices of Escrow Agent or the
attorney conducting settlement. Purchaser may, by written notice to Seller,
designate another title company or an attorney admitted to the bar of the State
of Indiana to conduct Closing hereunder.
b. Closing Documents. Deposit with Escrow Agent or the attorney
conducting settlement of the cash payments, the deed of conveyance, and such
other papers as are required of either party by the terms hereof shall be
considered valid tender and delivery of the same.
(1) By Seller. At Closing hereunder, Seller shall certify,
execute, acknowledge, and deliver:
(a) A customary general warranty deed in the name of the person or
entity designated by Purchaser for the Property.
(b) An assignment of the
Tenant Leases and the security deposits therefor, indemnifying Purchaser
for costs and liabilities thereunder before Closing, and a xxxx of sale
transferring title to the personalty, including right, title, and interest
in licenses, permits, trade-name, operating contracts, and the like owned
by Seller and used in the operation of the Property;
(c) A certificate, in form and substance reasonably acceptable to the
parties, stating that the representations and warranties of Seller set
forth herein are true and correct as of Closing.
(d) A Non-Foreign Affidavit as required under Section 9b hereof.
(e) A settlement statement reflecting adjustments pursuant to Sections
5c and 5d below.
(f) An affidavit executed by Seller stating that there are no
mechanics liens, tax liens, unpaid claims for labor, services or material,
chattel liens, or similar liens against or with respect to the Property,
nor does any person have a right to place such a lien against or with
respect to the Property.
(g) Such additional documents as may be necessary or customary to
consummate the transactions contemplated herein.
(2) By Purchaser. At Closing hereunder, Purchaser shall:
(a) Pay the Purchase Price in accordance with Section 2 hereof.
(b) Execute, acknowledge, and deliver a certificate stating that the
representations and warranties of Purchaser set forth herein are true and
correct as of Closing.
(c) Execute, acknowledge, and deliver an assumption of the Tenant
Leases and the security deposits therefor, indemnifying Seller for costs
and liabilities thereunder after Closing.
(d) Execute, acknowledge, and deliver such additional documents as may
be necessary or customary to consummate the transactions contemplated
herein.
c. Closing Adjustments. The following items of income and expenses on
a per diem basis shall be prorated and adjusted to the date of Closing
hereunder: (i) rents under the Tenant Leases and laundry income; (ii) water
rents, sewer charges, fuel charges, fuel, gas, electricity, telephone, and
other utility charges; and (iii) all taxes relating to the Property. Taxes,
real and personal, general and special, shall be adjusted in accordance
with the latest tax bills issued by the taxing authorities. Any special
assessments imposed by any governmental agency or authority which are
pending, noted, or levied, or which may be levied, noted, or ordered prior
to Closing, on a per diem basis shall be prorated and adjusted to the date
of Closing hereunder.
d. Closing Costs. Seller shall pay Seller's attorney fees and any
grantor tax, agricultural tax, forest transfer tax, or rollback tax.
Purchaser shall pay documentary deed stamps, all state and county
recordation fees and charges, the costs of examination of title and
preparation of a survey, the premium of any title insurance policy
purchased by Purchaser, and Purchaser's attorney fees. All other costs of
settlement not otherwise expressly provided for in this Agreement shall be
paid by the Purchaser.
e. Possession. Subject to the rights of the tenants under the Tenant
Leases, Seller shall give possession and occupancy of the Property to
Purchaser at Closing hereunder. In the event Seller shall fail to do so,
Seller shall become and thereafter be a tenant at sufferance of Purchaser
and Seller hereby waives all notices to quit provided by the laws of the
State of Indiana.
f. Notice of Violations. All written notices of violations of orders
or requirements issued by any governmental agency or authority, or actions
in any court on account thereof, arising prior to the Effective Date and
against or affecting the Property at the date of Closing hereunder of which
Seller has notice, shall be complied with by Seller and the Property
conveyed free thereof. If the Property is not free thereof, the Purchaser
shall have the right, at Purchaser's option, either to (i) terminate this
Agreement, in which event the Deposit, together with all interest earned
thereon, shall be returned to the Purchaser, and the Purchaser and the
Seller shall thereafter have no further obligations hereunder, or (ii)
proceed with the Closing subject to such violations.
Section 6. Conditions to Closing. The obligation of Purchaser to close
hereunder is subject to the satisfaction, at or prior to Closing, of each
of the following conditions, any of which may be waived, in whole or in
part, in writing by Purchaser at or prior to Closing:
a. Representations and Warranties. The representations and
warranties of Seller set forth herein shall be true and correct in all
material respects.
b. Title. Title to the Property shall be in the condition
required by Section 4 hereof.
c. Compliance by Seller. Seller shall have performed and complied
with all of the covenants and conditions required by this Agreement to
be performed or complied with at or prior to Closing and shall deliver
all Closing Documents.
d. No Adverse Matters. No material portion of the Property shall
have been adversely affected as a result of earthquake, disaster, any
action by governmental authority, flood, riot, civil disturbance, or
act of God or public enemy.
e. Financing. Purchaser shall have obtained the financing
described in Section 8d herein below as and when required therein.
If any of the foregoing conditions have not been satisfied as of the
date of Closing or at such other time as may be specified above (as the same may
be extended from time to time), Purchaser shall have the right to (i) waive such
conditions and proceed to Closing, or (ii) terminate this Agreement whereupon
the Deposit, together with all interest earned thereon, will be returned to
Purchaser and neither party will have any further liability to the other. Seller
hereby covenants and agrees it will not enter into a sale contract for the
Property with any other person or entity unless this Agreement has been
terminated according to its terms or the outside date for Closing hereunder has
occurred without settlement.
Section 7. Condition of Property.
At Closing hereunder, Purchaser shall take the Property in "as is"
condition as on the date of expiration of the Feasibility Period,
reasonable wear and tear excepted. Seller assumes all risk of loss or
damage to the Property by fire or other casualty until Closing.
Section 8. Obligations Pending Closing.
a. Title to and Condition of Property. Except as may be necessary
to cure Title Objections, from the Effective Date hereof to the
Closing Seller shall not cause or permit any change in the status of
title to the Property or the physical condition of the Property except
for customary maintenance and operations. Seller shall not cause or
permit any adverse change in the condition of the Property, reasonable
wear and tear and damage by fire or the elements excepted. Seller
shall not enter into any leases or other occupancy agreements with
respect to all or any portion of the Property, or amend, modify, or
extend existing leases except in the ordinary course of business
without the prior written consent of Purchaser.
b. Condemnation. In the event any governmental agency should
notify Seller, or Seller should become aware, of any permanent or
temporary actual or threatened taking of all or any portion of the
Property, Seller shall promptly notify Purchaser of the same.
c. Casualty. The risk of loss or damage to the Property caused by
fire or other casualty prior to Closing hereunder shall be borne by
the Seller. The Seller shall notify the Purchaser promptly of any
damage to the Property, and give the Purchaser a right to inspect such
damage. If the damage is in excess of fifty thousand dollars
($50,000), the Purchaser shall have the right, at Purchaser's option,
either to (i) terminate this Agreement, in which event the Deposit,
together with all interest earned thereon, will be returned to the
Purchaser, and Purchaser and the Seller shall thereafter have no
further obligations hereunder, or (ii) proceed with the Closing and
accept title to the Property without any reduction in the Purchase
Price, and the Seller shall deliver or assign to the Purchaser any
insurance awards paid or due Seller with respect to such damage and
lost revenues for the period after Closing.
d. Financing. Promptly after the Effective Date Purchaser shall
prepare, submit, and diligently prosecute an application for
acquisition and rehabilitation financing in an amount of one million
eight hundred thousand dollars ($1,800,000) with the Indiana
Development Finance Authority ("IDFA") or any other applicable bond
issuance agencies of the Property jurisdiction, such financing to be
secured by a first mortgage lien on the Property and otherwise on
terms and conditions acceptable to the Purchaser and the mortgage
lender and bond issuer. Purchaser shall provide Seller from time to
time reports on the progress of the application for financing and
shall advise Seller promptly upon any final determination by IDFA.
e. Seller Cooperation. Seller shall provide upon request of
Purchaser from time to time, Seller, at no cost or expense to Seller,
shall execute, join in, consent to and/or support any requests,
applications, proposals or hearings file, initiated or prosecuted by
Purchaser with respect to (i) the zoning or rezoning of all or any
portion of the Property, (ii) the subdivision of all or any portion of
the Property into one or more record lots, (iii) the procurement of
building permits with respect to the development of the Property, (iv)
the granting of easements and rights of way for water, sewer, gas,
electricity, telephone and other utilities, and (v) the procurement of
any governmental or quasi-governmental approval of any aspect of the
development of the Property reasonably required by Purchaser in
connection therewith. Seller's obligation to execute, join in, consent
to, and support any of the foregoing matters shall be conditioned on
such matters having no binding effect on the Property until after
closing hereunder.
Section 9. Representations and Warranties of Seller.
Seller represents and warrants to 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:
a. Seller (i) has full power and authority to sell the Property
to Purchaser without the consent of any other person or entity, (ii)
has authorized the execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated
hereby, and (iii) is the sole legal and equitable owner of record and
in fact of good and marketable fee simple title to the Property,
subject to the exceptions described in Section 4a. b. Seller is not a
"foreign person" as that term is defined in Section 1445 of the
Internal Revenue Code, and Seller shall execute an affidavit to such
effect in the form to be provided by Purchaser. Seller shall indemnify
Purchaser and its agents against any liability or cost, including
reasonable attorneys' fees, in the event that this representation is
false or Seller fails to execute such affidavit at Closing hereunder.
c. No taking by power or eminent domain or condemnation proceedings
have been instituted or, to the best of Seller's knowledge, threatened
for the permanent or temporary taking or condemnation of all or any
portion of the Property. d. There is not pending or, to Seller's
knowledge, threatened, any litigation, proceeding or investigation
relating to the Property or Seller's title thereto, nor does Seller
have reasonable grounds to know of any basis for such litigation,
proceedings, or investigations. e. To the best knowledge of Seller
there exists no violation of any law, regulation, orders, or
requirements issued by any governmental agency or authority, or action
in any court on account thereof, against or affecting the Property. f.
Except for current obligations shown on its operating statements,
Seller has not made, and prior to Closing hereunder will not make, any
commitments to any governmental authority or agency, utility company,
school board, church or other religious body, or to any other
organization, group, or individual, relating to the Property which
would impose on Purchaser the obligation to make any contributions of
money, dedication of land, or grants of easements or rights-of-way, or
to construct, install, or maintain any improvements, public or
private, on or off the Property except as currently installed at the
Property. g. All services performed or materials provided in
connection with the construction of improvements on the Property have
been paid or will be paid before Closing. Seller shall certify the
same to the title insurance company insuring Purchaser's title to the
Property. h. To the best knowledge of Seller there are in existence at
the Property no "hazardous wastes" as that term is defined in the
Resource Conservation and Recovery Act, the Comprehensive
Environmental Resources, the Compensation and Liability Act, or the
regulations issued pursuant thereto by either the Federal
Environmental Protection Agency. Seller is not a generator of any such
hazardous wastes, and is in full compliance with all hazardous waste
emissions, reporting, and removal requirements imposed by applicable
law. To the best knowledge of Seller and disclosed to Purchaser, there
is in existence at the Property some "asbestos" as that term is
defined in regulations promulgated by the Federal Environmental
Protection Agency or the Occupational Safety and Health
Administration. i. To the best knowledge of Seller the zoning
classification of the Property under the zoning regulations of the
Property jurisdiction permits the use of the Property, as a matter of
right and without issuance of any special use permit or other special
exception, for its current use. There is not pending or, to Seller's
knowledge, threatened, any proceedings to change or down-zone the
existing classification applicable to any portion of the Property. j.
To the best knowledge of Seller the sale of the Property pursuant to
this Agreement shall not violate any law, ordinance, or governmental
regulation regulating the character, dimensions, or location of any
improvements existing on the Property, or prohibiting a separation in
ownership or a change in the dimensions or area of the Property or any
parcel of which the Property is or was a part. k. To the best
knowledge of Seller there are in existence water, storm sewer,
sanitary sewer, electricity, and telephone service serving the
Property having adequate capacity for the current use of the Property
as residential rental housing. To the best knowledge of Seller such
utility services are available at the Property over duly dedicated
streets or perpetual easements of record. To the best knowledge of
Seller there exists no restriction, prohibition, or moratorium on the
right of the Purchaser to access all such utilities, nor any condition
that Purchaser construct or improve utility facilities or lines not on
the Property. l. Seller has no knowledge of any change contemplated in
any applicable laws, ordinances, or regulations, any judicial or
administrative action, proceeding, or investigation, any action by
owners of land adjoining the Property, or natural or artificial
conditions upon the Property, which would restrict or prohibit
Purchaser's use of the Property. There is no moratorium on development
applicable to the Property or to the issuance of building permits for
dwelling units in the jurisdiction. m. Other than the tenants under
the Tenant Leases, there are no parties in possession of any portion
of the Property as lessees, tenants at sufferance, or trespassers. No
person, firm, corporation, partnership, or other entity, has any right
or option to acquire the Property or any portion thereof. n. All
documents and other information provided by Seller to Purchaser
pursuant to this Agreement shall be true and complete in all material
respects. o. The person executing this Agreement on behalf of Seller
represents and warrant that he or she is an officer, representative,
or partner of Seller, has been duly authorized by Seller to execute
this Agreement, and has full power and authority to execute the same
on behalf of Seller. p. At Closing, there will be no management,
service, maintenance, employment, or other similar contracts affecting
the Property which are not terminable at will without penalty except
those contracts described and provided under Section 3a(viii)
hereinabove.
Section 10. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller as follows, all of which
representations and warranties are true and correct as of the date thereof
and shall be true and correct as of Closing hereunder:
a. Purchaser (i) is a stock corporation duly organized, validly
existing, authorized to transact business, and in good standing under
the laws of the State of Nevada, (ii) has full power and authority to
purchase the Property from Seller without the consent of any person or
entity, and (iii) has authorized the execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby. b. The person executing this Agreement on behalf
of Purchaser represents and warrants that he is a managing member of
Purchaser, has been duly authorized by Purchaser to execute this
Agreement, and has full power and authority to execute the same on
behalf of Purchaser.
Section 11. Default.
If Purchaser shall fail to complete settlement as herein provided, the
entire Deposit shall be paid in accordance with the terms of Section 2a
hereof to Seller as liquidated damages and not as a penalty, as Seller's
sole remedy, and the parties hereto shall be relieved from any further
liabilities or obligations hereunder. If Seller shall fail to complete
settlement as herein provided, or default in any manner under this
Agreement, Purchaser, in addition to obtaining a refund of the Deposit,
shall be paid by Seller a sum equal to the Deposit then held under Section
2a hereof as liquidated damages and not as a penalty, as Purchaser's sole
remedy, and the parties hereto shall be relieved from any further
liabilities or obligations hereunder.
Section 12. Brokers.
Seller and Purchaser each represents and warrants to the other that
other than Creek House Real Estate, Inc. (the "Broker"), no real estate
agent, broker, or finder have acted for it in connection with this
Agreement and the transactions contemplated hereby, and each shall
indemnify and save the other harmless from the claim of any such persons
claiming by or through it for commissions or fees by reason of this
Agreement or the transaction contemplated hereby. Seller shall pay Broker a
brokerage commission under a separate agreement.
Section 13. Notices.
Any notice required or permitted to be given hereunder shall be in
writing and shall be hand-delivered, delivered by overnight courier, sent
by facsimile transmission followed by mail copy, or mailed by certified or
registered mail, postage prepaid, return receipt requested, to the parties
hereto at their respective addresses set forth below, or at such other
addresses of which either party shall notify the other party in accordance
with the provisions hereof, and shall be deemed given as of the time of
such mailing or delivery, as applicable:
If to the Seller:
Xx. Xxxxx Xxxxxxx
General Partner
Prairie-Middlebury Associates
00 Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000;
(000) 000-0000
Fax (000) 000-0000; and
If to the Purchaser:
Xx. Xxxxxx X. XxxXxxxxxx
President
Homes for America Holdings, Inc. c/o
The MacFarlane Company, Inc.
000-0 Xxxx 000xx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
(000) 000-0000
Fax (000) 000-0000.
Section 14. Binding Effect and Assignment.
Seller and Purchaser agree that the terms and conditions of this
Agreement shall be binding upon, and shall inure to the benefit of, their
respective heirs, legal representatives, successors, and assigns. Purchaser
shall have no right to assign this Agreement without the prior express
written approval of the Seller, which approval shall not be unreasonably
withheld by the Seller; provided that Purchaser may with advance notice to
Seller designate a limited liability company or partnership controlled by
Purchaser to receive title to the Property at Closing with Purchaser
retaining all of its obligations under this Agreement.
Section 15. Escrow Agent.
Escrow Agent may act upon any instrument or writing believed by it in
good faith to be genuine and executed by the proper person, and shall not
be liable in connection with the performance of its duties hereunder except
for its own willful misconduct or gross negligence. In the event of any
dispute or litigation hereunder concerning the disposition of the Deposit,
Escrow Agent shall have the right to pay the same and all interest thereon
into the registry of any court of competent jurisdiction, and Escrow Agent
shall hereupon be released from any further liabilities with respect to the
Deposit except as aforesaid.
Section 16. Miscellaneous.
This Agreement contains the entire understanding between the parties
hereto with respect to the Property and is intended to be an integration of
all prior or contemporaneous agreements, conditions, or undertakings
between the parties hereto; and are no promises, agreements, conditions,
undertakings, warranties, or representations, oral or written, express or
implied, between and among the parties hereto with respect to the Property
other than as set forth herein. No changes or modifications of this
Agreement shall be valid unless the same is in writing and signed by Seller
and Purchaser. No purported or alleged waiver of any of the provisions of
this Agreement shall be valid or effective unless in writing signed by the
party against whom it is sought to be enforced. All representations,
warranties, and covenants herein shall survive Closing hereunder and shall
not be merged in the deed of conveyance for a period of one hundred twenty
(120) days but no party shall maintain an action or recover for any breach
or default known by it at Closing and in any event no recovery for any such
claim after Closing for a breach or default shall be limited to and not
exceed twenty five thousand dollars ($25,000). It is agreed that time is of
the essence in the performance of the terms of this Agreement.
Section 17. Interpretation.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Indiana. Captions herein are for convenience of
reference only and in no way define, limit, or expand the scope or intent
of this Agreement. Whenever the context hereof shall so require, the
singular shall include the plural, the male gender shall include the
female, and vice versa. This Agreement may be executed in two (2) or more
counterparts, all of which together shall constitute but one and the same
Agreement. In the event that one or more of the provisions hereof shall be
held to be illegal, invalid, or unenforceable, such provisions shall be
deemed severable and the remaining provisions hereof shall continue in full
force and effect.
Section 18. 1031 Exchange.
Seller hereunder desires to exchange, for other property of like kind
and qualifying use within the meaning of Section 1031 of the Internal
Revenue Code of 1986, as amended, and the Regulations promulgated
thereunder, fee title in the Property which is the subject of this Purchase
Agreement. Seller expressly reserves the right to assign its rights, but
not its obligations, hereunder to a Qualified Intermediary as provided in
IRC Reg. 1.1031(k)-1(g)(4) on or before the closing date.
Section 19. Expiration of Offer.
Execution of this Agreement by Purchaser shall constitute an offer to
purchase the Property on the terms and conditions set forth herein. In the
event this Agreement shall not have been fully executed by Seller and
returned to Purchaser on or before March 31, 1997, such offer shall expire
and be of no further force or effect.
[Signatures of parties appear on next succeeding page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed under seal on the date first above written.
SELLER
Prairie-Middlebury Associates
WITNESS:
---------------------------- By:------------------------------
Xxxxx Xxxxxxx, General Partner
Date: ---------------, 1997
PURCHASER:
Homes for America Holdings, Inc.,
a Nevada corporation
WITNESS/ATTEST:
/s/ Xxxxxx X. XxxXxxxxxx
------------------------------ By: --------------------------------
Xxxxxx X. XxxXxxxxxx, President
Date: -------------, 1997
ESCROW AGENT:
For purposes of Sections 2a and 15 only:
York Title & Escrow of Elkhart, Inc. hereby acknowledges receipt
of the Deposit referred to in the foregoing Agreement of Purchase and Sale and
agrees to accept, hold and return such Deposit and disburse any funds received
thereunder, in accordance with the provisions of such Agreement of Purchase and
Sale.
York Title & Escrow of Elkhart, Inc.
Xxxxx 000
0000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Fax (000) 000-0000
By: --------------------------------
Its: --------------------------------
Date:--------------------------------
EXHIBIT A
Description of Property
[Legal description of Property at 740 Prairie / 000 Xxxxxxxxxx,
Xxxxxxx, Xxxxxxx 00000, identified as Census Tract No. 0019.10, to be
attached by Seller]
