(Community Acquisition Joint Venture
National Agreement of Sale For Multiple Parks with Statutory Compliances)
AGREEMENT OF SALE
THIS AGREEMENT OF SALE made as of this ____ day of May, 1998, by and
between HFIC INC, a Missouri corporation, and/or its assigns ("BUYER") and
Gulfstream Harbor, Inc., and Gulfstream Harbor II Inc., as their interests may
appear (collectively the "SELLER").
WHEREAS, SELLER is the fee simple owner of certain premises commonly
known GULFSTREAM HARBOR MOBILE HOME PARK ("Gulfstream Harbor"), GULFSTREAM
HARBOR II MOBILE HOME PARK ("Gulfstream II"), CARIBBEAN COVE MOBILE HOME PARK
("Caribbean"), plus approximately fifteen acres of land, all located in Orange
County, Florida, all 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 and equipment described in the Schedule of
Personal Property attached hereto as Exhibit "B" and made a part hereof (the
"Personal Property"), under the terms and conditions set forth herein (the
aforesaid Real Property and Personal Property 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. SALE AND PURCHASE OF PROPERTY. SELLER agrees to sell and
convey to BUYER and BUYER agrees to purchase:
(a) All of SELLER's right, title and interest in and
to the Real Property, together with all right, title and interest of SELLER in
and to any land lying in the beds of any streets, avenues, alleys or passages,
open or proposed, bounding or abutting the Real Property, and drainage rights
appurtenant to the Real Property, together with all right, title and interest,
if any, of SELLER, in and to any easements, rights of way or passageways
appurtenant to or benefiting the Real Property and free of all liens and
encumbrances except the Permitted Exceptions, as that term is defined in
Paragraph 4 hereof, provided, however, that any title problem with respect to
the real property consisting of approximately 21,935 square feet, identified as
Parcel 7 on the attached map, Exhibit "G", shall be deemed permitted exceptions
and BUYER may elect to take title to Parcel 7 in another entity or to exclude
Parcel 7 from the transaction with no adjustment made to the Purchase Price;
(b) All articles of personal property of whatsoever
nature or sort, if any, which are owned by SELLER and which, as of the date of
this Agreement of Sale, are attached or appurtenant to or used in connection
with or located in or upon the Real Property, and any additions thereto or
replacements thereof which may be made between the date of this Agreement of
Page 1
Sale and the date of Closing hereunder (all of the foregoing being hereinafter
collectively referred to as the "Personal Property"), which Personal Property,
excluding those items described in Exhibit "H" attached hereto and made a part
hereof, shall be conveyed by SELLER to BUYER at Closing by a quit-claim xxxx of
sale; and
SELLER's interest in the Real Property and the Personal Property are
hereinafter sometimes referred to collectively as the "Property".
2. CONSIDERATION. The total consideration to be paid by BUYER
for the Property shall be in the sum of THIRTY ONE MILLION NINE HUNDRED THOUSAND
DOLLARS ($31,900,000.00) plus the inventory value (the "Purchase Price"). The
inventory currently consists of four new and two used mobile homes listed on
Exhibit "F" attached hereto and made a part hereof. The inventory value of the
mobile homes shall be the lower of the SELLER'S cost or the fair market value of
the homes. If the parties cannot agree on the fair market value of a home, the
fair market value shall be determined by a third party appraisal, the cost of
which shall be split equally between SELLER and BUYER, provided however that the
SELLER or its affiliates shall acquire only such inventory as it may reasonably
require for its business.
3. PAYMENT OF CONSIDERATION. The Purchase Price shall be paid
as follows:
(a) Within five (5) calendar days of the Effective
Date of this Agreement of Sale, as that term is defined in paragraph 34 below,
BUYER shall deliver to Lawyers Title Insurance Corporation, at the following
address: Lawyers Title Insurance Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000 Attn: Xxxxxx Xxxxx, Esquire (the "Escrow Agent"), the sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) which shall represent the initial xxxxxxx money
deposit for the Property, "Initial Deposit". It is hereby agreed that the
Initial Deposit shall be in the form of a check from BUYER and it shall be
deposited by Escrow Agent in its Trust Account until the expiration of the
BUYER's Inspection Period (as hereinafter defined).
(b) Within five (5) calendar days of the expiration
date of the Inspection Period, BUYER shall deposit with the Escrow Agent an
additional TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($200,000.00) which shall
represent an additional xxxxxxx money deposit "Additional Deposit".
(c) The Escrow Agent shall, upon receipt from BUYER
of a complete and fully executed W-9 Reporting Form, deposit the Initial Deposit
and Additional Deposit (the "Deposit") into an interest bearing money market
account, which interest shall accrue to BUYER's benefit unless BUYER defaults
hereunder.
(d) BUYER shall pay to SELLER at Closing by wire
transfer of immediately available federal funds at the office of the Escrow
Agent the balance of the Purchase Price less any prorations or adjustments due
BUYER pursuant to this Agreement of Sale.
Page 2
(e) At least five (5) business days prior to Closing,
SELLER shall have the option ("Seller's Stock Option") by written notice to
BUYER to receive in lieu of cash, operating partnership units ("AIOP Units") in
Asset Investors Operating Partnership, L.P., a Delaware limited partnership
("AIOP"), which are convertible to stock in Asset Investors Corporation ("AIC"),
based on the greater of book value or market value of AIC stock as of the date
of Closing, for all or any portion of the net proceeds due SELLER at Closing.
The AIOP Units and AIC stock shall be Rule 144 restricted stock for a period of
one year from the date of Closing. If SELLER elects Seller's Stock Option as set
forth above, BUYER shall cause this Agreement of Sale to be assigned to AIOP. If
SELLER does not elect Seller's Stock Option as set forth above, BUYER shall
cooperate with SELLER or SELLER's Exchange Facilitator/Accommodator to achieve
an IRS Code Section 1031 Exchange, so long as BUYER incurs no additional costs
or liability, nor is required to take title to other property involved in such
exchange, if any. The transaction contemplated by this Agreement is not subject
to or conditioned upon such exchange being accomplished. If SELLER elects a "tax
free reorganization" of SELLER, BUYER will cooperate so long as the net
financial result is in conformity with the terms and conditions of this
Contract, at no cost to BUYER and so long as BUYER incurs no additional cost or
liability.
4. TITLE INSURANCE.
A. Within ten (10) days of the Effective Date of this
Agreement by SELLER, SELLER shall deliver to BUYER and Escrow Agent a copy of
the SELLER's current title insurance policy, if any, together with copies of all
instruments recorded in the public records or otherwise encumbering the
Property, subsequent to the effective date of said Policy.
B. Within twenty (20) days of the date of the
Effective Date, Seller shall, at SELLER's expense, deliver to BUYER and BUYER's
Attorney for approval, as hereinafter provided, with a copy provided to SELLER's
attorney, a preliminary owner's title binder for a title insurance policy,
together with copies of all exception documents referred to therein, to be
issued by an agent of Seller licensed and qualified to do business in the state
in which the Real Property is located (the "State"). The binder 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 the amount of $31,900,000.00. The
policy and binder shall be in a current ALTA standard form "B", except that
there shall be no exceptions unless agreed to by BUYER (provided all standard
exceptions shall be removed by customary affidavits to be provided at Closing).
The policy shall insure marketable title.
C. BUYER shall have ten (10) days after receipt of
the title binder, together with copies of all exception documents referred to
therein, and the survey called for in paragraph 5 hereof to give written notice
to SELLER or SELLER's attorney of any objections by BUYER to the state of title
(including any matters shown on the survey which are unacceptable to BUYER). All
matters not objected to by BUYER shall be deemed "Permitted Exceptions". If the
existing mortgage encumbering the Real Property is assumed hereunder, such
mortgage shall be included as a Permitted Exception. Failure of BUYER to deliver
a written notice of disapproval of the state of title to SELLER or SELLER's
attorney within said ten (10) day period shall be conclusive evidence that BUYER
has approved each and every matter contained in said preliminary title report
and shown on the survey and that BUYER will accept title in that condition.
Page 3
D. After due notice, SELLER shall have a reasonable
time, not to exceed thirty (30) days, to cure any title defects (and if
necessary, the Closing shall be delayed for that period). If SELLER elects not
to pursue cure of any title defect or fails to cure any title defect as to which
due notice is given, BUYER shall have the option to pursue cure of such defect
at BUYER's expense within thirty (30) days after receipt of SELLER's notice of
SELLER's election not to cure or of SELLER's failure to cure after which thirty
(30) days, BUYER shall have the option to either (i) terminate this Agreement,
by written notice to SELLER, whereupon this Agreement shall terminate and all
parties shall be released from any further obligations hereunder, except that
BUYER shall be entitled to an immediate refund of the Deposit plus accrued
interest, if any, or (ii) proceed under this Agreement in whole and accept title
to the Real Property subject to such defects as to the affected mobile home
park, in which case the Closing shall take place on the later of the date set
for Closing as hereinafter provided or on a date mutually agreed upon by SELLER
and BUYER which shall be within ten (10) days from the date of such election by
BUYER (the date finally set by the parties hereto for the Closing shall be
hereinafter referred to as the "Closing Date").
E. Escrow Agent or its agent, 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 the applicable state statutes to extinguish any right of
purchase or rescission in favor of any tenants or homeowners association.
5. SURVEY.
A. Within ten (10) days of the Effective Date of this
Agreement by SELLER, SELLER shall deliver to BUYER and Escrow Agent copies of
SELLER's current surveys.
B. SELLER shall, at its expense, within twenty (20)
days after the Effective Date, furnish to BUYER a current "as built" survey of
the Real Property. The survey must be acceptable and certified to BUYER and to
the Title Insurer insuring the Real Property so that the "survey" and "claims of
easements" exceptions can be removed from the title policy, and must be prepared
in accordance with the minimum requirements adopted by the agency or authority
regulation the preparation of surveys in the State in which the Real Property is
located. The survey shall locate all easements, streets, common area
improvements, building setback lines, and other manmade objects, excluding
manufactured homes and shall be superimposed over an aerial photograph so as to
locate all manufactured homes and vacant spaces, if any. If the survey discloses
an encroachment or setback violation, this shall be deemed a defect in title and
paragraph 4 above, shall apply. The survey shall be dated and signed by a
registered and/or licensed land surveyor in the state in which the Real Property
is located. The surveyor's seal shall be affixed to the survey. The surveyor's
registration and/or license number shall be indicated thereon, and the legal
description of the Real Property shall be set forth on the survey. Any other
survey requirements in the Title Commitment shall also be complied with,
including a surveyor's certificate in the form attached hereto as Exhibit "I"
acceptable to the Title Insurer and counsel for BUYER.
Page 4
6. REPRESENTATIONS AND WARRANTIES.
A. To induce BUYER to enter into this Agreement,
SELLER makes the following representations and warranties, all of which shall be
true and correct continuously throughout the term of this Agreement, and which
shall survive the closing of title for a period of six (6) months from the
Closing Date (hereinafter defined):
(a) SELLER has the authority to execute and
deliver this Agreement.
(b) SELLER has complied with all applicable
provisions of Florida Statutes, Chapter 723.071 with respect to the transaction
contemplated by this Agreement of Sale, and at Closing, SELLER shall execute a
certificate of such compliance in accordance with Florida Statutes, Chapter
723.072.
(c) To the best of SELLER's knowledge, there
are no special or other assessments levied against or relating to the Property
and SELLER does not have actual knowledge of any proposed assessments.
(d) 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 construction liens upon or affecting all or any
part of the Real Property.
(e) There are no leases which affect the
Real Property except as set forth in the Rent Roll attached hereto as Exhibit
"C" and made a part hereof and the information contained on the Rent Roll is
true and correct; no rental agents, brokers or finders have any rights with
regard to such leases 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 lessor under each such lease and has the right to assign same to
BUYER.
(f) SELLER has received no notice of any
pending 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 similar functions, 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.
(g) SELLER has received no notice of
violation of any governmental permits, licenses, and approvals necessary for the
operation of the Property as a manufactured housing (mobile home) community,
including, as applicable, all County Health Permits or other applicable permits,
State Department of Environmental Protection permits and State HRS permits, and,
to the best of SELLER's knowledge, there are no material violations currently
existing thereunder.
Page 5
(h) SELLER represents that its existing
prospectus, a copy of which shall be delivered to BUYER on the Effective Date,
has been approved by the State and local governmental agencies having
jurisdiction over the Real Property (the "Governing Laws") and remains valid.
BUYER will not provide any prospectus to a tenant of the Property prior to
Closing unless both SELLER and BUYER have approved such prospectus in writing.
(i) 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"). With respect to
the Service Contracts: (i) amounts paid or payable thereunder shall be prorated
between the parties at the Closing and credits shall be given the parties as
appropriate to such prorations; and (ii) they can each be terminated upon thirty
(30) days written notice or less except (i) Garbage Removal Agreement, (ii)
Sludge Removal Agreement, and (iii) CATV Agreement.
(j) Except in the ordinary course of
SELLER's business, SELLER will not enter into any amendment to or modification
of any of the Leases prior to the Closing Date, which will reduce, forgive, or
postpone any rents or which would otherwise materially affect the value of the
Property, without BUYER's consent; no rents or other deposits are or will on the
Closing Date be held by SELLER, except only tenant security deposits and prepaid
rents for the current month; 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.
(k) Pending Closing hereunder, SELLER shall
conduct its business involving the Property in the ordinary course, and during
said period will:
(1) Refrain from entering into any
contracts or other commitments regarding the Property, other than in the
ordinary and usual course of business, without the prior written consent of
BUYER;
(2) Continue to maintain and repair
the Property in at least the manner which SELLER has previously maintained and
repaired the Property, and SELLER will permit or commit no waste of the
Property;
(3) Keep in effect SELLER's existing
policies of public liability and hazard and extended coverage insurance insuring
the Property; and
(l) No tenant has been granted any rent
concession not reflected on the face of the copy of the lease for that tenant as
provided by SELLER to BUYER (other than as set forth on the Rent Roll).
(m) SELLER has received no notice of the
existence of underground storage tanks, hazardous substances, or contaminants
subject to Federal, state or local laws or regulation used, stored or located
Page 6
on, under or about the Property in any manner contrary to applicable law except
as may be set forth in any Phase I Environmental Audit Summary attached hereto
as Exhibit "E".
B. SELLER, by executing this Agreement, agrees to
indemnify, defend and save and hold BUYER harmless from and against any and all
losses, costs, expenses, liabilities, claims, causes of action, suits or other
matters by reason of any material breach of the above representations and
warranties. Such indemnification includes, but is not limited to, costs and
attorneys' fees and expenses (including attorneys' fees and expenses on appeal)
reasonably incurred in connection with the defense of any claims against BUYER
by any party arising out of the above matters (after SELLER is afforded thirty
(30) days to cure such breach). The SELLER's foregoing indemnity obligation
shall survive Closing and delivery of the Special Warranty Deed hereunder for a
period of six (6) months. In addition, should any representation or warranty
made by SELLER hereunder be determined by BUYER at or before Closing to be
materially incorrect and BUYER elects to terminate this Agreement as a result
thereof, SELLER shall be obligated (after SELLER is afforded thirty (30) days to
cure such breach) to reimburse BUYER promptly upon written demand for the costs
of BUYER's diligence review of the Property through the date of termination up
to a maximum of $50,000.00. This indemnity obligation shall survive Closing and
delivery of the Special Warranty Deed hereunder and shall include all attorneys'
fees and costs incurred in collection of all sums due from SELLER to BUYER
pursuant to this Indemnity, together with interest on said sums at the maximum
rate permitted by law through collection.
C. In the event that any one or more of the
representations or warranties given by SELLER to BUYER in paragraph 6(a) above
is/are determined by BUYER between the Closing Date and the Effective Date, to
be materially inaccurate, BUYER shall give written notice to SELLER and SELLER
shall have the option to: use its best efforts to promptly cure the
violation(s); reimburse BUYER for the reasonable cost of cure (including all
reasonable attorneys' fees, engineering fees, or other applicable fees, costs
and charges); or to contest BUYER's determination by written notice to BUYER, in
which event BUYER shall have the option to pursue the rights and remedies
available to BUYER pursuant to paragraph 20 of this Agreement.
7. STATUTORY COMPLIANCE. During the Inspection Period, the
SELLER shall furnish BUYER and Escrow Agent evidence satisfactory to Escrow
Agent and BUYER, that SELLER has satisfied its statutory requirements under
Florida Statutes, Chapter 723.071 (the "Statutory Compliance"). SELLER shall use
diligent best efforts to provide such evidence during the Inspection Period. If
SELLER fails to provide such evidence prior to the expiration of the Inspection
Period, BUYER may terminate this Agreement and SELLER shall reimburse BUYER for
its reasonable expenses incurred in connection with this Agreement, including,
but not limited to, attorneys fees and fees of third party consultants up to a
maximum of $50,000.00.
8. BUYER'S INSPECTION PERIOD. BUYER shall have a thirty (30)
day period ("BUYER's Inspection Period") commencing from the Effective Date ,
during which time BUYER shall have the right to perform such due diligence
evaluations as BUYER may reasonably require in connection with its evaluation of
Page 7
the Property, including, but not limited to, environmental, soils, flood plain,
legal, financial and engineering studies, all at BUYER's sole cost and expense.
BUYER hereby indemnifies and agrees to hold harmless and defend SELLER from and
against any and all losses or claims for property damage or personal injury or
any liability under any environmental or other law arising out of BUYER's
inspections and BUYER and/or any contractor of BUYER shall, prior to entry on
the Real Property hereunder, obtain casualty/liability insurance in an amount
satisfactory to SELLER, or to add SELLER to existing policies as a named
insured, and provide SELLER with a certificate of insurance evidencing that
SELLER is insured against any such loss. In the event that any inspection by
BUYER or any consultant engaged by BUYER in connection with BUYER's due
diligence results in any damage or disturbance to the Property or any other
damage or disturbance which any resident requires SELLER to repair, BUYER shall
cause such consultant, or undertake itself, at no cost to SELLER, to repair
promptly such damage and restore such Property to the condition it was in
immediately prior to such inspection. If BUYER, in BUYER's reasonable judgment,
believes the results of its due diligence investigation to be unsatisfactory,
BUYER may elect to terminate this Agreement of Sale by written notice to SELLER
delivered not later than the last day of BUYER's Inspection Period. In such
event, the Initial Deposit will be refunded to BUYER by Escrow Agent. If BUYER
fails to deliver notice of termination, as aforesaid, BUYER shall be deemed to
have irrevocably waived its right to terminate this Agreement of Sale pursuant
to this paragraph 8, and shall be obligated to pay to the Escrow Agent the
Additional Deposit described in paragraph 3(b). BUYER's Inspection Period shall
be extended one (1) day for each day SELLER fails to provide BUYER with the
following:
1. Current Rent Roll;
2. Monthly Financial Statements for the previous thirty-six
(36) months;
3. Community Prospectus or comparable State required
documents;
4. Previous Title Insurance Policy;
5. Prior Survey;
6. Liability Listing (contingent and non-contingent);
7. Lists of all current and previous legal action;
8. Existing Environmental Phase I Report (if any);
9. True Copies of paid real estate and personal property
tax bills for the previous three (3) years;
10. True Copies of Rental Increase Notices for previous three
(3) years.
SELLER agrees to provide BUYER with all of the items set forth
above for BUYER's review as soon as possible, but in no event later than ten
(10) days after the Effective Date, so that the only items left during the
BUYER's Inspection Period shall be the remaining due diligence items pertaining
to: the condition of the Property; zoning; code compliance; updated survey;
updated title; termite report; and environmental report.
SELLER acknowledges that if the residents of any of the mobile
home parks elect to purchase their mobile home park through a statutory
recognized residents' association, this Agreement shall be deemed a back-up
contract and the terms and conditions of this paragraph shall control upon the
Page 8
termination of the residents' contract and shall remain in full force and effect
except the Closing shall be postponed. If such residents fail to close on their
transaction, BUYER shall purchase the Real Property. If such residents close
their transaction, this Agreement shall automatically terminate, in which event
all parties shall be released from any further obligations hereunder except
BUYER shall be entitled to an immediate refund of the Deposit plus accrued
interest, if any, and SELLER shall reimburse BUYER for its reasonable expenses
incurred in connection with this Agreement, including, but not limited to,
attorneys fees and fees of third party consultants up to a maximum of
$50,000.00.
9. CONDITIONS PRECEDENT. The following are conditions
precedent to BUYER's obligation to close and consummate the transaction
contemplated by this Agreement. BUYER and only BUYER, may waive one or more of
these conditions. In the event that all of these conditions are not satisfied or
fulfilled by the Closing Date, BUYER may elect not to close this transaction,
and in such event, BUYER shall be entitled to the prompt return from Escrow
Agent of the Deposit:
A. SELLER has obtained Statutory Compliance and is in
a position to execute at Closing, a Seller's Compliance Affidavit in accordance
with Florida Statutes, Chapter 723.072.
B. The representations and warranties of SELLER
contained in paragraph 6 a, f and g above 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 such representations
and warranties were true and correct on the Closing Date.
C. There shall have been no material change in the
physical condition or the net operating income of the Property.
10. CLOSING. The sale and purchase transaction contemplated by
this Agreement shall be closed and consummated on or before thirty (30) days
from the date of expiration of the Inspection Period on a date mutually agreed
to by the parties (the "Closing Date"). Closing shall be at the offices of
SELLER's counsel or, at BUYER's option, may be effected through the mail as
coordinated by counsel for SELLER and BUYER. Notice shall be given to Escrow
Agent at least five (5) days in advance of the date established by the parties
for Closing. The Closing shall be at 10:00 A.M., Eastern Standard Time on the
Closing Date unless otherwise agreed by the parties or their counsel. At
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 or applicable partnership
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.
Page 9
B. Special Warranty Deed from SELLER to BUYER
conveying title to the Real Property to BUYER free and clear of all liens,
encumbrances and matters other than the Permitted Exceptions.
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.
D. Affidavit of No Liens by SELLER.
E. Affidavit of Non-Foreign Status by SELLER.
F. Florida Statutes, Chapter 723.072 Affidavit of
compliance by SELLER.
G. Affidavit of SELLER certifying that the
representations and warranties contained herein are true and correct as of the
Closing Date.
H. Updated 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, all authorizations, permits and licenses relating to the operation of the
Property which are assignable by SELLER, if any, and all leases, 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.
K. Assignment by SELLER, to the extent they exist and
without representation or warranty, to BUYER of all agreements, 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. Closing Statement by SELLER and BUYER.
Page 10
M. With respect to any service contracts being
assumed by BUYER, BUYER and SELLER shall enter into an assignment, assumption
and hold harmless agreement and to the extent reasonably possible, BUYER shall
enter into new contracts with such vendors andcancel the existing contracts
provided the same can be done without increased cost to 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 to BUYER all existing plans
and specifications 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, permits,
certificates of occupancy, 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
Deposit to SELLER. Said sum shall be paid, at SELLER's election, by locally
drawn cashier's check or Federal Reserve Bank wire transfer.
11. CLOSING COSTS. SELLER shall pay for the cost of any
corrective documents required for marketable and insurable title, transfer
stamps, if any, on the Special Warranty Deed and all costs associated with the
issuance of the title binder and policy, and the survey. BUYER shall pay for the
cost of recording the Special Warranty Deed. Each party shall bear its own
attorneys' fees and other professional costs, except as otherwise provided for
herein.
12. 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 day before the Closing Date and funding shall be on
or before 2:00 p.m. Eastern Standard Time on the Closing Date, or if the Closing
Date is extended under the terms and conditions of this Agreement of Sale, the
prorations shall be adjusted one (1) day for each extension day. 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 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 of the Closing by the governmental agency having
jurisdiction over the Property, 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 ten (10) days of request
Page 11
therefor. In the event SELLER or BUYER fails to remit the reproration amount
requested within said ten (10) 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
highest lawful rate until paid, it being acknowledged that this right shall
survive Closing and delivery of the Special Warranty Deed. 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, if SELLER and BUYER
deem it appropriate, BUYER shall institute proceedings to collect such
delinquent rents and all rents received by BUYER attributable to periods prior
to the Closing Date shall be promptly remitted by BUYER to SELLER, after BUYER
first deducts from any collected amounts a service fee of five percent (5%). If
legal action is necessary, BUYER may also deduct the costs of collection
including, but not limited to, filing fees, reasonable attorneys fees and court
costs, provided, however, that such costs shall be split pro-rata between BUYER
and SELLER based on the amount of the preclosing and post closing rents subject
to the claim. All rents collected after the Closing shall be first applied to
current rents due, then to rents for periods prior to the Closing Date unless
they are clearly intended by the tenant to apply for the period prior to Closing
in which event they shall be promptly remitted to SELLER. This obligation to
remit shall survive the Closing and delivery of the Special Warranty Deed.
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.
13. DELIVERY OF POSSESSION. At Closing, SELLER shall deliver
to BUYER possession of the Real Property subject only to the Permitted
Exceptions.
14. FIRE OR OTHER CASUALTY. For purposes of this Agreement of
Sale, a "minor casualty" shall be any casualty occurring to the Real Property
which causes damages of less than One Hundred Fifty Thousand Dollars
($150,000.00) to the affected Real Property. Any other casualty shall be a
"major casualty". If, prior to Closing hereunder, the Real Property is subjected
to a major or minor casualty of which SELLER becomes aware, SELLER shall give
BUYER prompt written notice thereof. If such casualty is a minor casualty, this
Agreement of Sale shall remain in full force and effect and the purchase
contemplated herein shall be concluded with no further adjustment, and at
Closing SELLER shall assign, transfer and set over to BUYER all of the right,
title and interest of SELLER in and to any awards that have been or that may
thereafter be made for such casualty, subject only to any rights of Tenant under
each Lease. If such casualty is a major casualty, the Real Property shall be
considered a defective parcel and BUYER shall have the right to terminate this
Agreement whereupon the Deposit will be refunded to the BUYER and the parties
will be released from any further liability hereunder.
15. EMINENT DOMAIN. For purposes of this Agreement of Sale, a
"minor condemnation" shall be any taking or condemnation by any body having the
power of condemnation or eminent domain which causes damages of less than One
Hundred Fifty Thousand Dollars ($150,000.00) to the affected Real Property. Any
Page 12
other taking or condemnation shall be a "major condemnation". If prior to
Closing hereunder the Real Property is subjected to a major or minor
condemnation of which SELLER becomes aware, SELLER shall give BUYER prompt
written notice thereof. If such condemnation is a minor condemnation, this
Agreement of Sale shall remain in full force and effect and the purchase
contemplated herein, less any interest taken by eminent domain or condemnation,
shall be effected with no further adjustment, and at Closing, SELLER shall
assign, transfer and set over to BUYER all of the right, title and interest of
SELLER in and to any awards that have been or that may thereafter be made for
such taking, subject only to rights of Tenant under any Lease. If such
condemnation is a major condemnation, the Real Property subject to the major
condemnation shall be considered a defective parcel and this Agreement shall be
automatically terminated, whereupon the Deposit plus accrued interest will be
refunded to the BUYER and the parties will be released from any further
liability hereunder.
16. NOTICES. All notices and other communications under this
Agreement of Sale shall be in writing and shall be effectively given only if
sent by nationally recognized overnight courier service, postage prepaid, return
receipt requested, addressed as follows:
To SELLER: XXXX XXXXXXX, Executive Vice President
Gulfstream Group
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
FAX No. (000) 000-0000
With a copy to: Xxxxx X. Xxxxxx, Esquire
Xxxxxxx Xxxxxx, Esquire
Akerman, Senterfett & Edison
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
FAX No. (000) 000-0000
To BUYER: HFIC, INC.
Attn: Xxxxxxx Xxxxx
0000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
FAX No. (000) 000-0000
With a copies to: Asset Investors Operating
Partnership, L.P.
Attn: Xxxxx X. Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Fax No. (000) 000-0000
and to:
Xxxxxx X. Xxxxxx, Esq.
Page 13
Xxxxxx X. Xxxxxx, P.A.
0000 XxXxxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Fax No. (000) 000-0000
or such other address as the party to be notified shall have designated to the
other party hereby by notice delivered in accordance herewith. All such notices
shall be deemed given on the business day next following the day such notice is
accepted for delivery by the overnight courier service.
17. CONFIDENTIAL INFORMATION. BUYER and SELLER acknowledge
that the information contained herein and to be provided hereunder is
confidential information. BUYER and SELLER agree to disclose such information to
only those individuals within and outside their respective organizations who are
necessary to perform such diligence as is deemed appropriate by BUYER or SELLER
with respect to this transaction. If this Agreement of Sale is terminated for
any reason, BUYER and SELLER shall, within ten (10) days after such termination,
each return to the other party all information provided to it by the other.
18. ASSIGNMENT. BUYER may assign its rights and interests
under this Agreement of Sale to any party without first obtaining the prior
written consent of SELLER, provided such assignment is to an entity or entities
affiliated with BUYER or formed by BUYER for the transactions contemplated
herein, and further provided that BUYER shall not be relieved of any of its
obligations hereunder through the Closing Date. BUYER shall assign this
Agreemnet of Sale to AIOP.
19. 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 at no additional cost at the time of Closing and shall be covered by the
Xxxx of Sale.
20. 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 legally cognizable damages suffered by BUYER by reason of the
delay in BUYER's acquisition of the Property; or (b) obtain the prompt return
from Escrow Agent of the 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.
21. DEFAULT BY BUYER. If, under the provisions of this
Agreement, BUYER shall be obligated to complete the purchase of the Property but
Page 14
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 remedies against BUYER
shall be to either (i) 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 legally cognizable damages
suffered by SELLER by reason of the delay in SELLER's sale of the Property; or
(ii) to obtain the 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
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.
22. PROVISIONS WITH RESPECT TO ESCROW.
(a) The duties and obligations of Escrow Agent
hereunder shall be entirely administrative and ministerial and not
discretionary. Escrow Agent shall be under no responsibility in respect of the
Deposit other than to faithfully follow the instructions herein contained.
Escrow Agent may conclusively rely upon any instructions or documents delivered
to it by BUYER and SELLER and purportedly executed by a duly authorized officer
or partner thereof and shall be under no duty of independent inquiry with
respect to any facts or circumstances recited therein. In the event that any
notice or instruction required to be delivered to Escrow Agent hereunder is not
so delivered, Escrow Agent may hold the Deposit, if any, pending delivery to
Escrow Agent of such instruction or notice and may exercise all of Escrow
Agent's rights and remedies hereunder or otherwise provided by law. The parties
hereto jointly and severally agree to reimburse and indemnify Escrow Agent for,
and hold Escrow Agent harmless against, any loss, liability or expense,
including but not limited to, reasonable attorney's fees, which may be asserted
against Escrow Agent or to which Escrow Agent may be exposed or which may be
incurred by reason of the acceptance of, or the performance of duties and
obligations under this Agreement of Sale, except arising from such Escrow
Agent's gross negligence or willful misconduct. In no event shall Escrow Agent
be liable for any loss, cost or damage arising out of the performance of its
duties hereunder, except for acts of gross negligence or willful misconduct.
(b) In the event of any dispute or disagreement of
Sale in connection with the performance by Escrow Agent of its duties under this
Agreement of Sale, including, but not limited to, the respective rights of the
parties to the Deposit, Escrow Agent may consult with counsel selected and
employed by Escrow Agent, and Escrow Agent shall suffer no liability for any
action taken or suffered in good faith in accordance with the opinion of such
counsel, if any, provided, however, that the Deposit shall be disbursed in
accordance with the terms of this Agreement of Sale. Notwithstanding any other
Page 15
provision of this Agreement of Sale, if any dispute or difference arises among
the parties or if any conflicting demand shall be made upon Escrow Agent, Escrow
Agent shall not be required to determine the same or take any action thereon.
Rather, Escrow Agent may await settlement of the controversy by appropriate
legal proceedings; or Escrow Agent may, by written notice to the parties hereto,
initiate litigation to determine to whom the Deposit held under this Agreement
of Sale shall be delivered; or Escrow Agent may file suit in interpleader with
the proper court in the United States District Court for the Middle District of
Florida, for the purpose of having the respective rights of the parties
adjudicated. Escrow Agent, upon initiation of such suit, may deposit with the
court the Deposit and, upon giving notice thereof to the parties hereto, Escrow
Agent shall be fully released and discharged from all further obligations
hereunder with respect to the Deposit except arising from gross negligence or
willful misconduct of Escrow Agent.
23. ACCEPTANCE DATE. SELLER shall have until 5:00 P.M. (EST)
on the fifth (5th) business day following Buyer's Execution Date, within which
to accept this Agreement. In the event SELLER fails to accept this Agreement as
of that time and date, this Agreement shall be null and void and of no further
effect and BUYER shall be entitled to the prompt return from Escrow Agent of the
Deposit.
24. BROKER'S COMMISSION. SELLER and BUYER each warrant that
there are no real estate or other brokers or finders of any type involved in
this transaction entitled to a fee. 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.
25. SURVIVAL OF AGREEMENT. The terms and conditions of this
Agreement which expressly so state shall survive the Closing hereof.
26. TIME IS OF THE ESSENCE. SELLER and BUYER acknowledge that
time is of the essence of this Agreement.
27. 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.
28. 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 Special Warranty
Deed.
Page 16
29. EXHIBITS. In the event that any exhibit which is referred
to in this Agreement is not attached hereto at the time of execution of this
Agreement by SELLER and BUYER, SELLER shall promptly cause any such missing
exhibit to be prepared and submitted to BUYER for BUYER's approval and the
Inspection Period shall be extended one (1) day for each day that SELLER fails
to deliver each exhibit. Upon approval of a given exhibit by BUYER, the same
shall be incorporated into this Agreement by written agreement executed by
SELLER and BUYER.
30. 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.
31. 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 the
State in which the Real Property is located. Additional information regarding
radon and radon testing may be obtained from your county public health unit.
32. VENUE. Venue for any legal proceeding hereunder shall be
in the State in which the Real Property is located, except with respect to an
interpleader action pursuant to paragraph 3(a) above which the parties
acknowledge shall be instituted in Orlando, Florida, pursuant to said paragraph.
33. 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.
34. EFFECTIVE DATE. Unless otherwise set forth herein, the
Effective Date shall be the date this Agreement is executed by the SELLER, so
long as SELLER returns a fully executed duplicate original of this Agreement to
the BUYER, by either hand delivery or postmarked as of the date of the execution
of this Agreement by the SELLER. Each day of delay in returning the executed
Agreement to the BUYER shall likewise extend the Effective Date.
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.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year indicated below.
Page 17
WITNESSES: HFIC INC, a Missouri corporation
By: XXXXXX X. XXXXXX, P.A., Authorized Agent
By:/s/Xxxxxx X. Xxxxxx
----------------------------- ----------------------------------
Print Name: Xxxxxx X. Xxxxxx, President
"BUYER"
-----------------------------
Print Name:
As to BUYER Buyer's Execution Date: May 12, 1998
GULFSTREAM HARBOR, INC., a Florida
Corporation
/s/Xxxx Xxxxxx By:/s/Xxxx X. Xxxxxxxxxxx
----------------------------- ----------------------------------
Print Name:Xxxx Xxxxxx Print Name:Xxxx X. Xxxxxxxxxxx
Title:Owner/President
/s/Xxxx Xxxxxxx
-----------------------------
Print Name:Xxxx Xxxxxxx "SELLER"
As to SELLER
Seller's execution date: May 13, 1998
GULFSTREAM HARBOR, II INC., a
Florida Corporation
/s/Xxxx Xxxxxx By:/s/Xxxx X. Xxxxxxxxxxx
----------------------------- ----------------------------------
Print Name:Xxxx Xxxxxx Print Name:Xxxx X. Xxxxxxxxxxx
Title:Owner/President
/s/Xxxx Xxxxxxx
----------------------------
Print Name:Xxxx Xxxxxxx "SELLER"
As to SELLER
Seller's execution date: May 13, 1998
Page 18
JOINDER
______________________________ of Lawyers Title Insurance Corporation
joins in this Agreement of Sale for the sole purpose of agreeing to act as
Escrow Agent and to be legally bound to hold the Deposit in accordance with the
provisions in Paragraphs 3(a) and 22 hereof.
----------------------------------
By:
-------------------------------
As Escrow Agent
Page 19
SCHEDULE OF EXHIBITS
EXHIBIT "A" Metes and Bounds Description of the Property
EXHIBIT "B" Schedule of Personal Property
EXHIBIT "C" Rent Roll
EXHIBIT "D" Service Contracts
EXHIBIT "E" Phase I Environmental Audit Summary
EXHIBIT "F" Inventory Homes
EXHIBIT "G" Map of Parcel 7
EXHIBIT "H" Excluded Personal Property
EXHIBIT "I" Form of Surveyor's Certification
Page 20
