AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made this 15th day of
November, 2000 by and between OKEECHOBEE INVESTMENT, L.L.C., a Florida limited
liability company (hereinafter referred to as "Seller"), and LAKE CRYSTAL
MRK-HFAH, INC. a Florida corporation (hereinafter referred to as "Buyer").
RECITALS:
1. Seller owns one parcel of improved real property (the "Property") located
in Palm Beach County, Florida, being approximately 28.7325 acres, more or
less, as more particularly described as set forth on Exhibit "A" attached
hereto, upon which there are 304 multi-family residential units, with
corresponding amenities and parking.
2. The Property, pursuant to that certain Declaration of Easements, Covenants,
Conditions and Restrictions dated December 1, 1998, and recorded December
15, 1998, in Official Records Book 10813, at page 1369, in the Public
Records of Palm Beach County, Florida, is entitled to the use and enjoyment
of that certain recreation area, ("Recreation Area") which is more
particularly described as set forth on Exhibit "B" attached hereto.
3. The Property is encumbered by that certain mortgage ("GMAC Mortgage") dated
the 21st day of March, 1996, by and between General Motors Acceptance
Credit Corporation ("GMAC") and Seller, which secures a promissory note
("GMAC Note") in the original principal amount of Eleven Million One
Hundred Sixteen Thousand Six Hundred and Seven Dollars ($11,116,607.00),
which may be assigned to CIBC, Inc., a New York corporation, during the
Financing Period, as hereinafter defined.
4. Simultaneous with the execution of this Agreement, Lake Crystal Bnd-HFAH,
Inc ("Lakeview Buyer") and Lakeview Investment Partnership, a Florida
general partnership, shall execute an Agreement of Purchase and Sale
("Lakeview Agreement") for that certain parcel of improved real property
("Lakeview Property") located in Palm Beach County, Florida, as more
particularly described as set forth on Exhibit "C" attached hereto. All
deposits made by Lakeview Buyer pursuant to the Lakeview Agreement shall be
referred to throughout this Agreement as "Lakeview Deposit." The parties
hereby agree that the closing of this Agreement occur concurrently with the
closing of the Lakeview Agreement; that a default of this Agreement be
deemed a default of the Lakeview Agreement; and that termination of this
Agreement be deemed termination of the Lakeview Agreement, all as more
fully set forth herein.
5. Buyer desires to purchase the Property from Seller and Seller desires to
sell the Property to Buyer, under certain terms and conditions as
hereinafter more particularly set forth, together with the following:
Exhibit 10.27 - Page 1
(a) The Real Property. The Property, together with all right, title and
interest, if any, in and to the streets and roads abutting such Property to
the center lines thereof, (provided the same are not dedicated public
streets) any strips and gores within or adjoining such Property, the air
space and right to use the air space above such Property, all rights of
ingress and egress by motor vehicles to parking facilities on or within
such Property, all alley, drainage, mineral, water, oil and gas rights, and
the tenements, hereditaments, easements, rights-of-way and appurtenances
belonging or in anyway appertaining thereto;
(b) Improvements and the Personal Property. All buildings, improvements,
fixtures (the "Improvements") and all articles of personal property (the
"Personal Property") owned or located on or used by the Seller in
connection with the Property and the Improvements, which articles of
personal property are listed on Exhibit "D" attached hereto, free and clear
from all liens and encumbrances except those permitted by this Agreement;
(c) The Intangible Property. All intangible property and rights now or on the
Closing Date (as hereinafter defined) owned or held by, or in favor of, the
Seller in connection with the Property, the Improvements and the Personal
Property or the use thereof, or any business or businesses conducted
thereon, building and trade names (including all of the Seller's interest
in the name Lake Crystal Apartments), business licenses, warranties
(including those relating to construction or fabrication), utility
contracts, telephone exchange numbers, advertising materials, plans and
specifications, engineering plans and studies, soil reports, governmental
approvals and development rights related to the Property and the
Improvements or any part thereof and any credits, reimbursements or other
amounts payable to the owner of any portion of the Property, the
Improvements and the Personal Property (collectively the "Intangible
Property");
(d) Leases. All leases (the "Leases") of space in the Property or Improvements,
concession leases and all tenant security deposits held by the Seller on
the Closing Date; and
(e) Service Contracts. The service contracts including originals of all service
and equipment leasing contracts relating to the Property which, pursuant to
its terms, will be binding on the Buyer after Closing ("Service
Contracts").
NOW, THEREFORE, for good and valuable consideration as more particularly
set forth herein paid by Buyer to Seller, the receipt and sufficiency of which
are hereby acknowledged by each of the parties hereto, it is hereby agreed as
follows:
1. Recitals. The foregoing Recitals are true and correct and incorporated
herein and made a part hereof by reference.
2. Sale of the Property. Seller agrees to sell to Buyer, and Buyer agrees to
purchase from Seller, the Property, on the terms and conditions of this
Agreement.
3. Effective Date. The effective date ("Effective Date") of this Agreement
shall be the date upon which Buyer receives a fully executed original or
copy of this Agreement. If executed in counterparts, the provisions of
Section 28 shall apply.
Exhibit 10.27 - Page 2
4. Purchase Price. The purchase price ("Purchase Price") shall be Fourteen
Million Five Hundred Thirty-Five Thousand Dollars ($14,535,000.00), subject
to adjustments and pro-rations as set forth herein. Buyer shall pay the
Purchase Price as follows:
4.1 Initial Deposit. A deposit (the "Deposit") in the amount of One Hundred
Thousand Dollars ($100,000.00)which shall be payable on the Effective Date;
4.2 Deleted.
4.3 Deleted.
4.4 Deleted.
4.5 Balance of Purchase Price. The balance of the Purchase Price shall be paid
at Closing, in immediately available United States funds or wire transfer.
5. Method of Payment of Deposit. The Deposit shall be paid by Buyer by check
or wire transfer to Xxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxxx, P.A. ("Escrow
Agent"). The Deposit shall be held in escrow in an interest bearing account
by Escrow Agent pending the Closing, at which time it will be applied as a
credit to the Purchase Price. Unless the Deposit is delivered to Seller
pursuant to this Agreement as a result of Buyer's default, all references
herein to the Deposit shall include interest thereon which shall inure to
the benefit of the Buyer.
6. Financing Contingencies-Conditions Precedent. Buyer's obligation to close
this transaction is subject to Buyer satisfying all of the requisite
financing contingencies ("Financing Contingencies") set forth in this
Section 6. If Buyer does not satisfy all of the Financing Contingencies
prior to the later of (i) January 1, 2000, or (ii) any Financing Extensions
defined in Paragraph 6.4 hereof (the later date shall hereafter be referred
to as "Financing Period"), Buyer may terminate this Agreement by providing
Seller written notice of such termination at any time prior to such date,
upon which the Deposit, plus accrued interest, if any, shall be returned to
Buyer, this Agreement shall be null and void and the parties shall be
released of any and all liability to each other except for those
obligations which specifically survive termination of this Agreement.
Buyer's termination pursuant to this Paragraph 6 shall also be deemed a
termination of the Lakeview Agreement, and Escrow Agent shall return the
Lakeview Deposit, plus accrued interest, if any, to Lakeview Buyer, the
Lakeview Agreement shall be null and void and the parties shall be released
of any and all liability to each other except for those obligations which
specifically survive termination of the Lakeview Agreement.
Exhibit 10.27 - Page 3
6.1 Third Party Financing. Buyer shall, within the Financing Period, as same
may be extended as more fully described herein, apply for third party
financing ("TP Financing") from an unaffiliated third party lender ("TP
Lender") in an amount sufficient, in Buyer's sole discretion, to acquire
the Property and complete certain renovations that Buyer deems necessary.
Notwithstanding the foregoing, TP Financing to be placed on the Property
and the Lakeview Property shall not exceed a combined Twenty-Eight Million
Seven Hundred Fifty Thousand Dollars ($28,750,000.00). Buyer shall have the
Memorandum of Understanding hereinafter described approved by any TP Lender
during the Financing Period. The terms and conditions of such TP Financing
shall be acceptable to Buyer, in its sole and absolute discretion, and
shall otherwise be pursuant to terms customary and usual for transactions
of this type in South Florida. If Buyer does not obtain such TP Financing
during the Financing Period as same may be extended as more fully described
herein, or if any TP Lender does not approve the Memorandum of
Understanding during the Financing Period as same may be extended as more
fully described herein, Buyer may terminate this Agreement, upon which the
Deposit, plus accrued interest, if any, shall be returned to Buyer, this
Agreement shall be null and void and the parties shall be released of any
and all liability to each other except for those obligations which
specifically survive termination of this Agreement. Buyer's termination
pursuant to this Paragraph 6.1 shall also be deemed a termination of the
Lakeview Agreement, and Escrow Agent shall return the Lakeview Deposit,
plus accrued interest, if any, to Lakeview Buyer, the Lakeview Agreement
shall be null and void and the parties shall be released of any and all
liability to each other except for those obligations which specifically
survive termination of the Lakeview Agreement.
6.2 Deleted.
6.3 Cooperation-Necessary Approvals. Seller agrees to cooperate with Buyer in
obtaining the TP Financing and to execute any agreements, assignments,
documents, certificates, notes, instruments or other writings reasonably
required to accomplish the foregoing (hereinafter sometimes collectively
referred to as the "TP Documents."); provided, however, that Seller shall
not be required to spend any funds in connection therewith (other than any
professional fees it incurs to review same), nor shall Seller be obligated
to execute any indemnity, guaranty or any other agreement which imposes
covenants on Seller that survive Closing.
6.4 Extension to Financing Period. If, upon the expiration of the Financing
Period, Buyer's Financing Contingencies have not yet been met, at Buyer's
sole and exclusive discretion, Buyer shall have the right to extend the
Financing Period for thirty (30) days ("Financing Extension") by written
notice to Seller not later than five (5) days prior to the expiration of
the Financing Period and the payment by Buyer to Escrow Agent of a
refundable extension fee ("Extension Fee") equal to Twenty Five Thousand
Dollars ($25,000.00) (which fee shall be treated as part of the Deposit and
applied at Closing to the Purchase Price). The Extension Fee shall be paid
not less than three (3) business days prior to expiration of the Financing
Period. The Extension Fee shall become non-refundable after the expiration
of the Financing Period, as extended, unless otherwise provided for herein.
A Financing Extension under this Agreement shall automatically be deemed a
Financing Extension under the Lakeview Agreement, and Lakeview Buyer shall
have no obligation to deposit any additional funds for the Lakeview
Financing Extension.
Exhibit 10.27 - Page 4
7. Inspection Period. Buyer shall have ten (10) days from the Effective Date
to confirm the condition of the Property (the "Inspection Period"). During
the Inspection Period, Buyer may make inspections or, at Buyer's expense,
have inspections of the Property made by appropriately licensed and insured
professionals. Inspections of individual units shall be limited to
unoccupied units only. Unless Buyer terminates this Agreement at the end of
the Inspection Period, Buyer shall be deemed to have accepted the Property,
the Improvements, the Personal Property and the Intangible Property in
their "AS IS" condition. Notwithstanding the foregoing, Buyer shall have
the right in its sole and absolute discretion, for any reason, or no reason
whatsoever, to terminate this Agreement by giving Seller written notice of
such termination at any time prior to expiration of the Inspection Period.
In the event of termination, the Deposit, plus accrued interest, if any,
shall be returned to Buyer, this Agreement shall be null and void, and the
parties shall be released of any and all liability to each other except for
those obligations which specifically survive termination of this Agreement.
If Buyer terminates this Agreement pursuant to this Section, Buyer shall
pay in full the cost of all inspections, reports, surveys and tests of any
kind resulting from Buyer's inspection so that no person, firm or entity
shall have the right to file a lien on the Property. Copies of such
documents in Buyer's possession shall be sent to Seller and become the
property of the Seller. Additionally, in the event of termination, Buyer
shall return to Seller all documents, reports, analysis, and plans provided
by Seller to Buyer since June 13, 2000. Buyer's termination pursuant to
this Paragraph 7 shall also be deemed a termination of the Lakeview
Agreement, and Escrow Agent shall return the Lakeview Deposit, plus accrued
interest, if any, to Lakeview Buyer, the Lakeview Agreement shall be null
and void and the parties shall be released of any and all liability to each
other except for those obligations which specifically survive termination
of the Lakeview Agreement. The provisions of this paragraph shall survive
the termination of the Agreement.
7.1 Access to Property; Tests. So long as this Agreement remains in effect,
Buyer and its representatives shall have the right and permission, subject
to rights of parties in possession, to enter upon the Property at all
reasonable times to make such investigations, studies and tests which Buyer
deems necessary or advisable, in its sole discretion (collectively the
"Tests"). All Tests shall be conducted at the sole cost and expense of
Buyer. Buyer shall also have the right to review and copy all financial
records and any other information pertaining to the operation of the
Property and the Seller, or their agents, representatives or contractors.
Seller shall reasonably cooperate with Buyer in its investigation of the
Property. Buyer or Buyer's agents shall not conduct any inspection so as to
cause damage to the Property, except damage reasonably resulting from soil
borings, but if any such damage occurs, Buyer shall restore the Property to
its pre-inspection condition not later than thirty (30) days after the
later of (a) after the damage occurs, or (b) when the Buyer becomes aware
or is notified by Seller that such damage has occurred. Buyer shall not
unreasonably interfere with the operation of the Property in making its
inspections pursuant to this Section 7. The provisions of this paragraph
shall survive the termination and the Closing of this Agreement, as the
case may be.
7.2 Indemnification. Buyer agrees to indemnify, defend (by counsel reasonably
satisfactory to Seller), save and hold harmless Seller, its shareholders,
directors, employees, other agents, successors and assigns, from and
against any and all losses, claims, damages, liabilities or expenses
(including reasonable attorneys' fees and costs through all trial and
appellate levels) related to any damage growing out of or arising from the
entry on or investigation of the Property by Buyer and any agents of Buyer.
When practical, before entering the Property, Buyer and any agents of Buyer
so entering the Property shall furnish Seller with not less than twenty
four (24) hours advance notice of same along with proof of liability
insurance. This provision shall survive the Closing or the termination of
this Agreement.
Exhibit 10.27 - Page 5
8. Purchase As-Is. Buyer acknowledges and agrees with Seller that Buyer is
purchasing the Property, the Improvements, the Personal Property and the
Intangible Property in an "as is" condition "with all faults" and
specifically and expressly, without any warranties, representations or
guarantees, either express or implied, of any kind, nature or type
whatsoever from or on behalf of Seller, except as is expressly set forth in
this Agreement. Buyer acknowledges that Buyer has not relied, and is not
relying, upon any information, document, sales brochures or other
literature (whether express or implied, or oral or written, or material or
immaterial) that may have been given by or made by or on behalf of the
Seller, except as provided in this Agreement.
8.1 No Reliance by Buyer. Except as otherwise provided for herein, Buyer hereby
acknowledges that it shall not be entitled to, and should not, rely on the
Seller or its agents as to (i) the quality, nature, adequacy or physical
condition of soils at the Property, (ii) the Property's compliance with any
environmental protection, pollution or land use laws, rules, regulations,
orders or requirements, including, but not limited to, those pertaining to
the handling, generating, treating, storing or disposing of any hazardous
waste or substance, (iii) the existence, quality, nature, adequacy or
physical condition of any utilities serving the Property; (iv) the
development potential of the Property, its habitability, merchantability or
fitness, suitability or adequacy of the Property for any particular
purpose; (v) the zoning or other legal status of the Property; (vi) the
Property's or its operations' compliance with any applicable codes, laws,
regulations, statutes, ordinances, covenants, conditions or restrictions of
any governmental or quasi-governmental entity or of any other person or
entity; (vii) the quality of any labor or materials relating in any way to
the Property; or (viii) the condition of title to the Property or the
Personal Property or the nature, status and extent of any right of way,
lease, right of redemption, possession, lien, encumbrance, license,
reservations, covenant, condition, restriction or any other matter
affecting title to the Property or the Personal Property, except as
provided in this Agreement.
8.2 Buyer's Opportunity to Inspect Property. Buyer acknowledges that Buyer will
have, pursuant to this Agreement, an adequate opportunity to make such
legal, factual, and other inquires and investigations as Buyer deems
necessary, desirable or appropriate with respect to the Property, the
Improvements, the Personal Property and the Intangible Property. Such
inquires and investigations of Buyer shall be deemed to include, but shall
not be limited to, the physical components of all portions of the Property,
the condition of the Property, such state of facts as an accurate survey
and inspection would show, the present and future zoning ordinances,
resolutions and regulations of the city, county and state where the
Property is located and the value and marketability of the Property and the
operations thereon.
9. Survey. Any item revealed on the Survey which is not a Permitted Exception,
as hereinafter defined, shall be deemed a Title Defect, as hereinafter
defined. Further, any of the following matters shown on the Survey shall be
treated as a Title Defect as provided in Section 10:
(a) any encroachments onto the Property;
(b) any encroachments of improvements onto the land of others;
(c) no means of physical and legal ingress to and egress from a publicly
dedicated roadway;
Exhibit 10.27 - Page 6
(d) any other matters that reasonably cause the insurer of the Title Commitment
to refuse to delete the survey exception to the Title Commitment.
10. Title Insurance and Title Review. Buyer has obtained, at Seller's expense,
a title insurance commitment prepared by Xxxxxx Xxxxx Xxxxxxx Xxxxx &
Xxxxxxx, P.A. ("Title Agent") and issued by Commonwealth Land Title
Insurance Company ("Title Insurance Commitment") and legible copies of all
exceptions to the title contained in Schedule B-II of the Title Insurance
Commitment. The Title Insurance Commitment shows the amount of the
insurance to be the Purchase Price and the proposed insured to be Buyer.
10.1 Endorsements. The Title Insurance Commitment shall reflect only the
Permitted Exceptions (as defined in Section 10.3) and shall have all of the
standard "printed form" exceptions and the "gap" exception deleted at the
Closing, except for taxes not yet due and payable and future taxes. The
Title Insurance Commitment shall be updated by endorsement at Seller's
expense, to a date not more than ten (10) days before the Closing. Seller
shall pay all title insurance premiums, title insurance search charges and
other costs charged in connection with the Title Insurance Commitment.
10.2 Review of Title. Buyer shall notify Seller within seven (7) days from the
Effective Date of any item affecting title to which Buyer objects ("Title
Defects"), separately specifying and setting forth each such objection.
Except for such objections attributable to matters recorded subsequent to
the effective date of the Title Insurance Commitment or endorsements
thereto, any objections not raised by Buyer to Seller in writing within
such seven (7) day period shall be deemed to have been waived by Buyer for
all purposes thereof; and Buyer shall not be entitled to any other damages
or other remedies with respect to such items.
10.3 Curing Title Defects. Seller shall have until the expiration of the
Financing Period, including any extension thereof, to cure all of the Title
Defects which, in the opinion of Buyer or Buyer's counsel, make title to
the Property unmarketable or uninsurable. Seller agrees to use due
diligence, good faith and its best efforts in attempting to remove such
Title Defects. Seller shall cure Title Defects in the nature of liens or
judgments if they are capable of being paid or discharged by the payment of
money or the posting of a bond. In the event Seller for any reason shall be
unable to cure one or more of the Title Defects by the expiration of the
Financing Period, including any extension thereof, or to convey to Buyer
title to the Property at the Closing in accordance with the provisions of
this Agreement, Buyer shall have the right, but not the obligation, to
attempt to cure such Title Defects for an additional thirty (30) days after
the expiration of the Financing Period, including any extension thereof.
If, after the expiration of either period, as the case may be, the Title
Defects cannot be cured, or if Seller is unable to convey to Buyer title to
the Property at the Closing in accordance with the provisions of this
Agreement, Buyer shall have the following rights: (i) to accept whatever
title Seller is able to convey without any abatement or reduction in the
Purchase Price, in which case Seller shall convey such title to Buyer, or
(ii) to reject title. Buyer shall not be entitled to any other rights or
remedies. If Buyer shall reject title under subsection (ii) above, this
Agreement shall terminate, Buyer shall be entitled to a refund of the
Deposit and interest accrued thereon, if any, and the parties shall be
released of any and all liability to each other except for those
obligations which specifically survive termination of this agreement. In
the event Buyer proceeds to close, the exceptions set forth in Schedule
B-II of the Title Commitment to which the Buyer has not filed a notice of
Title Defect, or which Title Defects Buyer has waived, in writing, shall be
collectively referred to as the "Permitted Exceptions." Termination
pursuant to this Paragraph 10 shall also be deemed a termination of the
Lakeview Agreement, and Escrow Agent shall return the Lakeview Deposit,
plus accrued interest, if any, to Lakeview Buyer, the Lakeview Agreement
shall be null and void and the parties shall be released of any and all
liability to each other except for those obligations which specifically
survive termination of the Lakeview Agreement.
Exhibit 10.27 - Page 7
11. Closing.
11.1 Closing Date. The closing of the transaction contemplated by this Agreement
("Closing") shall occur on or before the later of (i) the date that is
thirty (30) days from the expiration of the Financing Period as extended by
any Financing Extensions, or (ii) the date that is the fifteenth (15th) day
of the month following the month in which the Financing Period, as extended
by any Financing Extensions, expires, subject to the date, time and
location requirements of the TP Lender. The Closing shall take place at the
offices of Seller; provided, however, the Closing may be conducted by
overnight courier at the option of either party. Notwithstanding the
foregoing, if the GMAC Note is assigned to CIBC, Inc. within the Inspection
Period, the Closing shall occur sixty-five (65) days from the expiration of
the Financing Period as extended by any Financing Extensions.
11.2 Simultaneous Closing. As a condition precedent to Closing, Buyer and Seller
shall, simultaneous with the Closing contemplated hereunder, also close the
Lakeview Agreement. In the event that the Lakeview closing does not occur
simultaneous with the Closing, and Buyer is not otherwise in default of
this Agreement, Buyer shall have the right to terminate this Agreement by
providing written notice to Seller, whereby the Deposit, plus accrued
interest, if any, shall be returned to Buyer, this Agreement shall be null
and void, and the parties shall be released of any and all liability to
each other except for those obligations which specifically survive
termination of this Agreement. Buyer's termination pursuant to this Section
11.2 shall also be deemed a termination of the Lakeview Agreement, and
Escrow Agent shall return the Lakeview Deposit, plus accrued interest, if
any, to Lakeview Buyer, the Lakeview Agreement shall be null and void and
the parties shall be released of any and all liability to each other except
for those obligations which specifically survive termination of the
Lakeview Agreement.
12. Delivery of Documents at Closing. At the Closing, Seller and/or Buyer, as
applicable, shall deliver the following, which, if a document, shall be
duly executed and in recordable form, if intended to be recorded:
12.1.Deliveries by Seller. Seller shall deliver the following documents at
Closing:
(a) Special Warranty Deed (the "Deed"), duly executed by Seller, conveying to
Buyer fee simple marketable title to the Property to be conveyed, subject
only to the Permitted Exceptions.
Exhibit 10.27 - Page 8
(b) A non-foreign affidavit complying with the requirements of Internal Revenue
code Section 1445(f)(3) and the regulations promulgated thereunder,
commonly known as a FIRPTA affidavit.
(c) Such affidavits, undertakings or other documents as are required by (i) the
Title Agent to delete all items in Schedule B-I of the Title Insurance
Commitment, the Standard Schedule B-II preprinted exceptions and the "gap"
exception or (ii) by any of the other terms of this Agreement.
(d) Appropriate entity documents authorizing the sale of the Property pursuant
to this Agreement.
(e) An affidavit of Seller certifying that there exist (i) no construction
liens or claims which could result in the filing of construction liens
against the Property, (ii) no individuals in possession of the Property to
be conveyed, other than tenants in possession under unrecorded leases which
leases do not provide tenant the right to extend the term of the lease or
to purchase any of the Property (iii) to take no action prior to the
recording of the Deed to Buyer which would affect the title to the
Property, and (iv) such other matters as may be required by the Title Agent
to comply at Closing with the title requirements of this Agreement, and as
may be reasonably required by the TP Lender, or any other lender providing
financing to the Buyer.
(f) An Assignment by the Seller to the Buyer of any and all utility agreements,
permits, density rights, concurrency exemptions and development rights
associated with the Property existing as of the Effective Date which remain
in effect as of the Closing. Seller shall keep all such agreements,
permits, rights and exemptions in effect during the term of this Agreement
and shall not transfer such agreements, permits, rights or exemptions to
any other persons or property.
(g) Deleted.
Exhibit 10.27 - Page 9
(h) To the extent the originals were not previously delivered to Buyer and are
within the possession or control of Seller or its affiliates, originals of
all Leases, all Service Contracts relating to the Property which will be
binding on Buyer after Closing, rental agreements, loan agreements,
mortgages, easements, covenants, restrictions or other agreement or
instrument relating to the Property, and all permits, licenses, approvals,
entitlements and other governmental authorizations (including, without
limitation, certificates of occupancy; if original certificates of
occupancy are not available, Seller shall provide copies to Buyer) required
in connection with the ownership, use or maintenance of the Property, and
copies of all tenant correspondence, billing files and records.
(i) A certified copy of the current rent roll dated within five (5) business
days of the Closing Date and showing all delinquencies.
(j) A certified list of all current litigation, actions or other proceedings
pending or, to Seller's knowledge, threatened against Seller or the
Property or as to Seller against any tenant in possession of the Property.
(k) All books and records pertaining to the operations of the Property for the
period from January 1, 2000 through the Closing Date.
(l) All costs and fees required to be paid by Seller pursuant to this
Agreement.
(m) To the TP Lender, any reasonably required TP Documents.
(n) If required, executed state, county and city transfer tax declarations and
any affidavit of Seller relating thereto and required by applicable laws.
(o) All other documents and instruments specified in or reasonably contemplated
by this Agreement, or that are customary for a transaction of this type.
12.2 Deliveries by Buyer. Buyer shall deliver or cause to be delivered the
following documents at Closing:
(a) The Purchase Price in accordance with this Agreement.
(b) To the TP Lender, any required TP Documents.
(c) A closing statement ("Closing Statement") in customary form providing for
the prorations and adjustments of the items and matters set forth in this
Agreement and the other monetary obligations stated herein to be an
obligation of either of the parties hereto.
(d) Such affidavits, undertakings or other documents as are required by (i) the
Title Agent to delete all items in Schedule B-I of the Title Insurance
Commitment, the Standard Schedule B-II preprinted exceptions and the "gap"
exception or (ii) by any of the other terms of this Agreement.
Exhibit 10.27 - Page 10
(e) A corporate resolution (or other entity document appropriate for the form
of entity) of Buyer authorizing it to purchase the Property.
(f) Certificate of Authority and corporate status of Buyer from the Secretary
of State, State of Florida or other state in which the Buyer entity is
domiciled.
(g) All other documents and instruments specified in or reasonably contemplated
by this Agreement, (including documents necessary to meet Buyer's Financing
Contingencies) or that are customary for a transaction of this type.
(h) The "Completion Guaranty," as defined below.
(i) Homes for America Holdings, Inc., shall deliver a promissory note in favor
of Okeechobee Investment LLC and Lakeview Investment Partnership in the
amount of Two Million Dollars ($2,000,000.00)("Homes for America Loan").
Xxxxxx XxxXxxxxxx and Xxxxxx Xxxx shall deliver a personal guaranty as to
the first $500,000.00 thereof.
(j) A memorandum of understanding (Memorandum of Understanding") in recordable
form (the form of which shall be agreed upon by the parties and any TP
Lender during the Financing Period) regarding certain repayment
requirements of the Homes for America Loan. 13. Costs.
13.1 Seller's Costs. Seller shall pay:
(a) the documentary stamp tax and surtax, if any, on the Deed;
(b) title insurance search fees, commitment preparation charges and the owner's
title insurance premium;
(c) the cost of discharge and release of any mortgage or construction liens, or
other liens or encumbrances which can be satisfied by payment of a
liquidated sum upon the property to be conveyed (other than those created
by Buyer);
(d) the costs to cure any objections to title raised by Buyer hereunder.
13.2 Buyer's Costs. Buyer shall pay:
(a) the minimum risk rate for a simultaneous mortgagee policy or policies;
Exhibit 10.27 - Page 11
(b) the cost of recording the Deed;
(c) any and all expenses relating to the: (i) TP Mortgage; and (ii) all
documentary stamps and surtax incurred in connection with recording any
additional mortgage financing of Buyer, and all related title and recording
expenses.
13.3 Additional Costs. Except as provided in Section 29 hereof, each party shall
be responsible for its own legal fees in connection with the Agreement and
the Closing.
14. Prorations, Adjustments to Purchase Price and Other Closing Costs.
14.1 Debt Service. Seller shall be responsible for and pay all debt service and
accrued expenses with respect to the Property accruing up to 11:59 p.m.
Eastern Time on the day prior to the Closing Date ("Adjustment Date") and
shall be entitled to receive and retain all revenue from the Property
accruing through the Adjustment Date. The following items shall be prorated
as of the Closing, and appropriate adjustments made to the Purchase Price:
(a) City, state, county and school district ad valorem taxes and any and all
other taxes and assessments applicable to the Property. Ad valorem,
intangible and personal property tax prorations shall be based upon the
present use and latest millage rate and assessments available with respect
to the Property. Without limiting any other provision of this section, if
the proration of such taxes is based upon estimate, rather than on actual
bills, then either party may demand after the Closing, and shall be
entitled to receive upon demand, a payment from the other party correcting
any proration based upon inaccurate estimates.
(b) Pending, certified, confirmed or ratified municipal, government improvement
and special assessment liens as of the date of the Closing are to be paid
by Seller. Except as provided in the prior sentence which shall control,
any special assessment for which the improvements have been substantially
completed as of Closing shall be deemed to be certified and Buyer shall
receive a credit at Closing in an amount equal to the last estimate of the
assessment made by the appropriate public body. Any installments of special
assessment liens that are payable in more than one installment that are due
and payable before the Closing will be paid by Seller; any installments of
such liens that become due and payable after the Closing shall be paid by
Buyer. Seller represents that as of the date of this Agreement there are no
known special assessments.
Exhibit 10.27 - Page 12
(c) Rents for the month in which the Closing Date occurs ("Closing Month"), to
the extent collected as of the Closing Date. Rents for months prior to the
Closing Month shall belong to Seller, and, at Closing, Seller shall sign a
notice directing any collection agent to which such delinquencies have been
referred to remit to Seller all such rents collected. Buyer shall have the
right to collect any delinquent rentals, and shall exercise good faith
efforts to collect such delinquent rents, but Buyer shall not be required
to bring any suits or other proceedings in order to so collect. Delinquent
rentals for any month prior to the Closing Month under any existing Leases
collected by Buyer, net of the costs of collection (including attorneys'
fees), shall be applied first against any amount currently due and owing
under such Leases and then to amounts most recently overdue ("Rent
Arrearages"). If, as and when Buyer collects payments from a tenant on
account of Rent Arrearages attributable to the period prior to the Closing
Date, Buyer shall hold such funds for Seller and shall pay an amount equal
to such Rent Arrearages collected to Seller within ten (10) days after
Buyer or its agent receives each such payment. Rents for the Closing Month
which are collected after the Closing Date by either Seller or Buyer shall
be apportioned between the parties within three (3) business days after
receipt.
(d) Charges under the Service Contracts (provided that same were delivered to
Buyer during the Inspection Period) affecting the Property on the Closing
Date (except those required to be terminated on or before Closing pursuant
to the terms of this Agreement) and any utility deposits relating to the
Property.
(e) Income from users of vending machines, laundry services, utilities, tenant
services, and from any other operations of the Property, if any.
(f) Any and all prepaid expenses of the Seller relating to the Property
attributable to the period after the Closing Date.
(g) Seller agrees to make vacant units at the Property rent ready prior to
Closing in accordance with the Seller's prior practices.
(h) At Closing, Buyer shall receive a credit in an amount equal to all
unapplied security deposits (and interest thereon as required by law)
payable to tenants under Leases in effect on the Closing Date. Upon
accepting such credit, Buyer shall be fully responsible for the same as if
a cash amount equal to such security deposits were actually delivered to
Buyer. Additionally, Buyer shall receive a credit in an amount equal to all
prepaid rents and rental concessions collected by Seller as of the Closing
Date.
(i) At Closing, Seller shall receive a credit in an amount equal to any
pre-paid utility deposits.
(j) For any Units rented to employees of Seller at a discount, at Closing,
Seller shall receive a credit in an amount equal to (monthly market rent
for the unit - actual monthly rent paid by employee tenant) x months
remaining in lease term.
The prorations and payments shall be made on the basis of a written
statement approved by Buyer and Seller. In the event any prorations or
apportionments made under this Section 14 shall prove to be incorrect for
any reason, then any party shall be entitled to an adjustment to correct
the same. Any item which cannot be finally prorated because of the
unavailability of information shall be tentatively prorated on the basis of
the best data then available and re-prorated when the correct data is
available. Notwithstanding the foregoing, any re-proration shall be made,
if at all, within one hundred eighty (180) days after the Closing Date
[except with respect to taxes and assessments, in which case such
re-proration shall be made within thirty (30) days after the data necessary
to perform such re-proration is available (which in the case of taxes shall
be the final tax xxxx)].
Exhibit 10.27 - Page 13
14.2 Survival. The terms of this Section 14 shall survive the Closing.
15. Reliance on Seller's Representations. In entering into this Agreement and
except as otherwise provided herein, Buyer has not been induced by and has
not relied upon any representations, warranties or statements, whether
expressed or implied, made by Seller or any agent, employee or
representative of Seller or by any broker or any other person representing
or purporting to represent Seller with regard to the Property or any
matters affecting the property which are not expressly set forth in this
Agreement whether or not any such representations, warranties or statements
were made in writing or orally.
15.1 Representations, Warranties and Covenants of Seller. Seller hereby makes
the following representations to Buyer, all of which shall be true and
accurate in all respects as of the date when made and on the Closing Date
as if made again on and with respect to the Closing:
(a) As of the date hereof, Seller has not received from any governmental
authority any written notice of, and Seller presently has no knowledge of,
pending or contemplated condemnation proceedings which have an effect on
the Property, or any part thereof, except for any condemnation with respect
to which the condemning authority acquired title prior to the date of this
Agreement.
(b) As of the date hereof, there are no pending judicial, municipal, or
administrative proceedings affecting any portion of the Property or
affecting Seller's right to sell any portion of the Property, and no case,
proceeding or other action has been commenced by or against Seller under
any bankruptcy, insolvency or similar laws. Notwithstanding the foregoing,
Seller hereby represents that two (2) actions have been filed against
Seller through the U.S. Department of Housing and Urban Development: (1)
HOPE and (2) Xxxxx Xxxxx, as complainants, which have been investigated but
for which Seller has received no final notification as to their resolution.
(c) As of the date hereof, Seller has not received any notice that Hazardous
Substances (as hereinafter defined) or toxic substances have been treated,
stored, handled or disposed of on, under or at the Property; that the
Property has been used for industrial purposes for the storage, treatment
or disposal of hazardous water or materials; or that the Property has ever
been listed by a governmental agency as containing any oil, hazardous
waste, hazardous material, chemical waster or other toxic substances.
"Hazardous Substances", as used herein, means any toxic or hazardous waste,
pollutants or substances, including, without limitation, petroleum products
or by-products, and substances defined or listed as hazardous substances or
toxic substances or similarly identified in or pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 41 U.S.C. Section 9601, et seq., hazardous materials
identified in or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802, e seq., hazardous waste identified in or pursuant to
the Resource Conservation and Recovery Act of 1976, as amended, 15 U.S.C.
Section 2601, et seq., or any hazardous or toxic substance or pollutant
regulated under any other applicable federal or local environmental law.
Further, Seller has no knowledge of the existence or placing of Hazardous
Substances on the Property in violation of any Environmental Laws, and no
Hazardous Materials have been used, generated, treated, stored or disposed
of in, under or upon the Property (above or below ground), or any portion
thereof, in violation of any Environmental Laws.
Exhibit 10.27 - Page 14
(d) The Property is currently zoned for multi-family residential development,
is platted through Palm Beach County and has all concurrency reservations
sufficient for the current use of the Property.
(e) Seller is the sole owner of and will have good and marketable title to the
Property and will have full authority to transfer the Property to Buyer on
the Closing Date. The Property will be conveyed by Seller at Closing, free
and clear of any liens, claims or encumbrances except for Permitted
Exceptions.
(f) Seller is a United States person as defined by Internal Revenue Code
Sections 1445 and 7701.
(g) The execution of this Agreement does not, and the performance by Seller of
the transactions contemplated by this Agreement will not violate or
constitute a breach of the terms of any document by which Seller is bound,
or, to Seller's knowledge, any Service Contract, Lease, permit, license,
order or decree to which Seller is a party or by which Seller or its assets
are bound.
(h) Seller shall deliver all Service Contracts and Leases to Buyer, and all
other documents required to be delivered to Buyer pursuant to Exhibit "E"
and this Agreement. Except as otherwise disclosed to Buyer in writing, the
documents produced by Seller throughout the Inspection Period and the
existence of this Agreement, and all other documents and materials
delivered to Buyer by Seller are, to Seller's knowledge, true, accurate and
complete. The Seller has not received any written notice with respect to
(i) the Property's failure to comply with applicable zoning and use
requirements and restrictions, (ii) the lack of the availability of water,
storm sewer, sanitary sewer, gas, electric, telephone and drainage
facilities required by law for the operation of the Property, or (iii) the
lack of availability of vehicular and pedestrian ingress and egress to the
Property.
(i) The Seller has not granted any person or entity a right or option to
acquire any interest in or all or any portion of the Property other than
the Buyer pursuant to this Agreement.
(j) The Seller is not in default, and at Closing will not be in default, under
any of its monetary obligations relating to the Property or any part
thereof. Seller shall continue to make all required payments of taxes and
insurance premiums relating to the Property and all principal and interest
and all other payments due into reserve, escrow and similar accounts.
(k) Seller has not (i) made a general assignment for the benefit of its
creditors, (ii) admitted in writing its inability to pay its debts as they
mature, (iii) had an attachment, execution or other judicial seizure of any
property interest which remains in effect or (iv) taken, failed to take or
submitted to any action indicating a general inability to meet its
financial obligations as they become due. There is no pending case,
proceeding or other action seeking reorganization, arrangement, adjustment,
liquidation, dissolution or recomposition of the Seller or any of its debts
under any state or federal law relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking appointment of a receiver,
trustee, custodian or other similar official for it for all or any
substantial part of its property.
Exhibit 10.27 - Page 15
(l) Seller has not received notice from any governmental authority or other
entity advising Seller of the existence of any material default with
respect to the Property, and for the period while Seller has owned the
Property, to Seller's knowledge, there has been no material defaults with
respect thereto.
(m) The financial statements provided by Seller to Buyer as part of this
Agreement have been prepared in accordance with industry standards and
fairly present the results of operations of the Property for the periods
ended on such dates.
(n) Except as disclosed in the documents provided by Seller to Buyer or
otherwise provided for in this Agreement, Seller has no debts, liabilities,
obligations, guarantees, indemnities, duties or responsibilities relating
to the Property. The Seller has paid all taxes, fees, charges, levies or
other assessments, including, but not limited to, income, gross receipts,
excise, real and personal property, sales, transfer, license, payroll and
franchise taxes, imposed by any governmental authority and due or assessed
against it, to the extent that such taxes relate to the Property.
15.2 Survival. The provisions of this Section 15 shall survive Closing and
delivery of the Deed of conveyance of the Property.
16. Interim Covenants of Seller. Until the Closing Date or the earlier
termination of this Agreement:
16.1 Ordinary Course of Business. Seller shall conduct, operate, manage, lease
and maintain the Property in the same manner as prior hereto pursuant to
its ordinary course of business.
16.2 Additional Agreements. Seller shall not enter into any additional business
agreements or other contracts or arrangements affecting the Property
without the prior written consent of Buyer, which consent may be withheld,
in Buyer's sole discretion, unless such business agreements or other
contracts can be terminated on not more than thirty (30) days notice
without premium or penalty, in which case Buyer shall not unreasonably
withhold its consent. The foregoing limitation shall not apply to leases or
lease amendments with residential tenants entered into in the ordinary
course of business, provided that the term, including tenant extension
options, does not extend beyond twelve (12) months from the commencement of
such term.
Exhibit 10.27 - Page 16
17. Brokers. Seller and Buyer represent and warrant to each other that neither
they nor any of their representatives, employees or agents have dealt or
consulted with any real estate broker in connection with the transaction
contemplated by this Agreement with the exception of CB Xxxxxxx Xxxxx, Inc.
("Seller's Broker") as an agent of the Seller who shall be paid a
commission by the Seller as agreed upon in a separate agreement by and
between Seller and Seller's Broker, and International Business and Realty
Consultants, L.L.C. as an agent of the Buyer who shall be paid a commission
by the Buyer equal to 1.8% of the Purchase Price. Seller and Buyer each
agree to indemnify and hold the other harmless against any loss, liability,
expense, claim or demand whatsoever (including reasonable attorneys' fees,
paraprofessional fees and court costs) arising from, or growing out of, any
claim for real estate commission contrary to this provision by any real
estate broker, agent or other person claiming to have dealt or consulted
with them or any of their representatives, employees or agents contrary to
the foregoing representation and warranty. Each representation, warranty,
and agreement contained in this section shall survive the Closing.
18. Seller's Default. In the event Buyer is not in default under this Agreement
and Seller defaults with respect to the performance of one or more of its
covenants, representations, and/or obligations under this Agreement, Buyer
shall be entitled, as its exclusive remedies, to elect (i) to terminate
this Agreement and have the Deposit returned to it whereupon all rights,
duties, liabilities and responsibilities of Buyer and Seller shall become
null and void, and the parties shall be released of any and all liability
to each other except for those obligations which specifically survive
Closing, (ii) to enforce specific performance of Seller's obligations under
this Agreement, or (iii) to xxx Seller for damages as to any default of any
condition of this Agreement that survives the Closing. It is expressly
provided, however, that except with regard to a failure to close on the
scheduled Closing Date in which case there shall be no cure, Buyer shall
provide Seller with written notice of any default hereunder, which notice
shall provide Seller with a ten (10) business day grace period within which
to cure any default of which notice has been given or, provided that Seller
commences and proceeds diligently, in the event that such cure cannot be
reasonably addressed or resolved within such ten (10) day period, Seller
shall have such time period as commercially reasonable to cure a default of
the nature noticed to Seller by Buyer, not to exceed thirty (30) days.
Buyer's termination pursuant to (i) of this Paragraph 18 shall also be
deemed a termination of the Lakeview Agreement, and Escrow Agent shall
return the Lakeview Deposit, plus accrued interest, if any, to Lakeview
Buyer, the Lakeview Agreement shall be null and void and the parties shall
be released of any and all liability to each other except for those
obligations which specifically survive termination of the Lakeview
Agreement. A default under this Agreement shall also be deemed a default
under the Lakeview Agreement, and Buyer shall be entitled to enforce all
rights and remedies provided Buyer in the event of Seller's default in the
Lakeview Agreement.
Exhibit 10.27 - Page 17
19. Buyer's Default. In the event Seller is not in default under this Agreement
and the Agreement has not otherwise been terminated by Buyer pursuant to
Buyer's termination rights as more fully described herein, and Buyer
defaults with respect to the performance of its obligations hereunder,
Seller may, at its sole and exclusive option, terminate the Agreement and
have the Deposit, including any interest thereon, delivered to it and
retain any non-refundable Extension Fees made pursuant to this Agreement by
Buyer, whereupon all rights, duties, liabilities and responsibilities of
Buyer and Seller shall become null and void, and the parties shall be
released of any and all liability to each other except for those
obligations which specifically survive Closing. It is expressly provided,
however, that Seller shall provide Buyer with written notice of any
non-monetary default hereunder, which notice shall provide Buyer with a ten
(10) business day grace period within which to cure any such default of
which notice has been given or, provided that Buyer commences and proceeds
diligently, in the event that such cure cannot be reasonably addressed or
resolved within such ten (10) day period, Buyer shall have such time period
as commercially reasonable to cure a default of the nature noticed to Buyer
by Seller, not to exceed thirty (30) days, provided, however, that there
shall be no cure period available in the event of a monetary default or in
the event that the Buyer fails to close on the Closing Date. Seller's
termination pursuant to this Paragraph 19 shall also be deemed a
termination of the Lakeview Agreement, and Escrow Agent shall deliver the
Lakeview Deposit, plus accrued interest, if any, to Seller, the Lakeview
Agreement shall be null and void and the parties shall be released of any
and all liability to each other except for those obligations which
specifically survive termination of the Lakeview Agreement.
20. Condemnation. If prior to the Closing Seller shall receive official notice,
by process or as otherwise provided by law, either a notice of intent to
file proceeding or that proceedings have been commenced or consummated for
the taking of any part or all of the Property for any public or
quasi-public purpose pursuant to the powers of eminent domain resulting or
which could result in the taking of any part of all of the Property, Seller
shall promptly thereafter give written notice thereof to Buyer. In the
event of any such proceedings, Buyer shall have the option to (i) terminate
this Agreement by written notice to Seller, whereupon this Agreement shall
be null and void and the Deposit and accrued interest, if any, shall be
returned to Buyer by Escrow Agent; and, upon receipt of the foregoing, this
Agreement shall terminate, and the parties shall be released of any
liability to each other except for those obligations which specifically
survive termination of this Agreement; or (ii) proceed with the performance
of this Agreement; and, in such event, Seller shall, at the Closing, assign
to Buyer any and all awards and other compensation arising out of any
taking of the Property, as applicable, or any part thereof to Buyer and
Seller's right to receive the same; and Seller shall convey, in accordance
with this Agreement and without any abatement of the Purchase Price, such
portion of the Property, if any, as shall remain at the Closing. Buyer
shall have ten (10) days from receipt of the notice provided for in this
Section 20 to exercise its option hereunder. Seller agrees not to enter
into any settlement of any condemnation proceedings or eminent domain
proceedings without the prior written consent of Buyer. Buyer's termination
pursuant to (i) of this Paragraph 20 shall also be deemed a termination of
the Lakeview Agreement, and Escrow Agent shall return the Lakeview Deposit,
plus accrued interest, if any, to Lakeview Buyer, the Lakeview Agreement
shall be null and void and the parties shall be released of any and all
liability to each other except for those obligations which specifically
survive termination of the Lakeview Agreement.
Exhibit 10.27 - Page 18
21. Further Assurances. In addition to the obligations required to be performed
hereunder by Seller and Buyer, Seller and Buyer agree to perform such other
acts, and to execute, acknowledge, and deliver subsequent to the Closing
such other instruments, documents, and other materials, as may reasonably
be requested by each other in order to effectuate the transaction
contemplated herein.
22. Notices. All notices, offers, acceptances, rejections, consents, requests
and other communications hereunder shall be in writing, in English, and
shall be deemed to have been given (i) when delivered in person by
professional courier service with receipt of delivery (ii) on receipt after
being sent by express mail or delivery service guaranteeing overnight
delivery or (iii) by telefax transmission when acknowledgment of receipt
can be ascertained, in each case addressed as follows:
If to Seller: Okeechobee Investment, L.L.C.
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attn: E. Llwyd Ecclestone
Telefax: (000) 000-0000
with a copy to: Xxxxxxxx Xxxxxx, Esq.
1555 Palm Beach Xxxxx
Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000
If to Buyer: Lake Crystal Mrk-HFAH, Inc.
Xxx X'Xxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxxXxxxxxx
Fax: (000) 000-0000 4550
with a copy to: Xxxx X. Xxxxx, Esq.
Xxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxxxx, P.A.
000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telefax: (000) 000-0000
Notwithstanding the foregoing, any termination of this Agreement may be
sent by telefax and shall be effective upon receipt, provided that a copy
is delivered by means of either (i) or (ii) above, within forty eight (48)
hours of the telecopier transmission. Either party may, by subsequent
written notice, designate a different address or additional party for
receiving notice; provided, however, that such notice shall be deemed
delivered only upon receipt. The attorneys for Seller and Buyer are
authorized to send notices and demands on behalf of their respective
clients.
23. Confidentiality. Homes for America Holdings, Inc. and Seller have entered
into that certain Confidentiality Agreement fully executed by the parties
thereto on May 5, 2000, which Confidentiality Agreement shall govern Buyer
and Seller's use and disclosure of certain information and documents
related to this Agreement as more fully described therein.
24. Recording. Neither Buyer nor Seller shall record this Agreement or a
memorandum of this Agreement, and any violation of this Section shall be a
default under this Agreement.
Exhibit 10.27 - Page 19
25. Time Computation. Except as specifically set forth herein to the contrary,
any references in this Agreement to time periods of less than six (6) days
shall, in the computation thereof, exclude Saturdays, Sundays and federal
and state legal holidays. Any time period provided for in this Agreement
that shall end on a Saturday, Sunday or federal or state legal holiday
shall extend to 5:00 p.m. on the next day that is not a Saturday, Sunday or
federal or state legal holiday.
26. Time is of the Essence. Time is of the essence with respect to each
material provision of this Agreement that requires action to be taken by
either party within a stated time period or on a specified date.
27. Governing Law and Venue. This Agreement and all transactions contemplated
by this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Florida without regard to
principles of conflicts of laws. Venue of all proceedings in connection
herewith shall be exclusively in Palm Beach County, Florida, and each party
hereby waives whatever their respective rights may have been in the
selection of venue and each party hereto submits to the exclusive
jurisdiction of the courts of the State of Florida.
28. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Once each party to this Agreement
has executed a copy of this Agreement, and the evidence of such execution
is communicated to the other party, the Agreement shall be considered fully
executed and effective, notwithstanding that both parties have not executed
the same copy hereof.
29. Attorneys' Fees. In the event of any litigation arising out of or connected
in any manner with this Agreement, the non-prevailing party shall pay the
costs of the prevailing party, including its reasonable attorneys' fees,
paraprofessional fees and court costs and expenses incurred in connection
therewith at trial and upon appeal. This section shall survive the Closing.
30. Interpretation. In case any one or more of the provisions of this Agreement
shall be invalid, illegal or unenforceable in any respect, the validity of
the remaining provisions shall be in no way affected, prejudiced or
disturbed thereby. The use of any gender shall include all other genders.
The singular shall include the plural and vice versa. Use of the words
"herein", "hereof", "hereunder" and any other words of similar import refer
to this Agreement as a whole and not to any particular article, section or
other paragraph of this Agreement unless specifically noted otherwise in
this Agreement. Because both parties to this Agreement are represented by
counsel, this Agreement shall not be interpreted more strictly against
either party.
31. Third Parties. Except as expressly set forth herein, this Agreement shall
not be deemed to confer in favor of any third parties any rights whatsoever
as third-party beneficiaries, the parties hereto intending by the
provisions hereof to confer no such benefits or status.
32. No Waiver. No failure of any party to exercise any power given hereunder or
to insist upon strict compliance by another party with its obligations
hereunder and no custom or practice of the parties at variance with the
terms hereof shall constitute a waiver of any party's right later to demand
exact compliance with the terms hereof.
Exhibit 10.27 - Page 20
33. Successors and Assigns and Completion Guaranty.
33.1 This Agreement may be assigned in whole or in part, by Buyer, to a wholly
owned subsidiary or affiliate of Buyer, without the prior written consent
of Seller, at any time after the Effective Date. Notwithstanding any
assignment pursuant to this paragraph, Homes for America Holdings, Inc.
shall remain primarily liable for any sum of money required to be paid by
the Buyer pursuant to this Agreement, including but not limited to Deposit,
Extension Fees or attorneys fees and costs, up through the Closing Date.
After Closing, except as outlined in subparagraph (b) below, Seller shall
release Lake Crystal Mrk-HFAF, Inc. from any and all liability created
pursuant to this Agreement, and specifically from the liability created
pursuant to this Paragraph 33.
33.2 Buyer will cause Homes for America Holdings, Inc. to deliver to Seller a
completion guarantee ("Completion Guaranty") in the form attached hereto as
Exhibit "F" which will guarantee the expenditure and completion of
renovations to the Property and the Lakeview Property in the amount of
Three Million ($3,000,000.00) Dollars ("Renovation Amount") within thirty
(30) months after Closing. The Renovation Amount may be advanced from the
TP Loan, by the Buyer from its internally generated funds or by any third
party. To the extent the Renovation Amount is not expended for renovations
within such thirty (30) month period by either the Buyer or any other
party, HFAI will pay to Seller the difference between the Renovation Amount
and the amounts actually expended for renovations to the Property and the
Lakeview Property. Buyer and Seller shall draft the Completion Guaranty and
agree upon same during the Financing Period.
34. Indemnification. Seller shall protect, defend, indemnify and hold Buyer and
its officers, directors, shareholders and employees harmless from and
against any obligation, liability, claim (including, without limitation,
any claim for damage to property or injury to or death of any persons),
lien or encumbrance, loss, damage, cost or expense (including, without
limitation, any judgment, award, settlement, reasonable attorneys' fees and
other costs, fees and expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim (including, without
limitation, appellate proceedings), and any collection or enforcement fees,
expenses and costs) ("Claim") resulting from: (i) any breach of warranty or
representation of Seller contained in Section 15.1 hereof; and (ii) any
action brought by a third party against Buyer which results from the
occurrence of any act, omission or event on or relating in any way to the
Property or the Seller prior to the Closing Date.
35. ESCROW AGENT.
(a) Escrow Agent undertakes to perform only such duties as are expressly set
forth in this Agreement. Escrow Agent shall not be deemed to have any
implied duties or obligations under or related to this Agreement. Escrow
Agent is the law firm representing Buyer. In the event of a dispute between
the parties, the parties consent to Escrow Agent continuing to represent
Buyer, notwithstanding that Escrow Agent shall continue to have the duties
provided for in this Agreement.
(b) Escrow Agent may (a) act in reliance upon any writing or instrument or
signature which it, in good faith, believes to be genuine; (b) assume the
validity and accuracy of any statement or assertion contained in such a
writing or instrument; and (c) assume that any person purporting to give
any writing, notice, advice or instructions in connection with the
provisions of this Agreement has been duly authorized to do so. Escrow
Agent shall not be liable in any manner for the sufficiency or correctness
as to form, manner of execution, or validity of any instrument deposited in
escrow, nor as to the identity, authority, or right of any person executing
any instrument; Escrow Agent's duties under this Agreement are and shall be
limited to those duties specifically provided in this Agreement.
(c) The parties to this Agreement do and shall indemnify Escrow Agent and hold
it harmless from any and all claims, liabilities, losses, actions, suits or
proceedings at law or in equity, or other expenses, fees, or charges of any
character or nature, including attorneys' fees and costs, which it may
incur or with which it may be threatened by reason of its action as Escrow
Agent under this Agreement, except for such matters which are the result of
Escrow Agent's gross negligence or willful malfeasance.
Exhibit 10.27 - Page 21
(d) If the parties (including Escrow Agent) shall be in disagreement about the
interpretation of this Agreement, or about their respective rights and
obligations, or about the propriety of any action contemplated by Escrow
Agent, Escrow Agent may, but shall not be required to, file an action in
interpleader to resolve the disagreement; upon filing such action, Escrow
Agent shall be released from all obligations under this Agreement. Escrow
Agent shall be indemnified for all costs and reasonable attorneys' fees,
including those for appellate matters and for paralegals and similar
persons, incurred in its capacity as escrow agent in connection with any
such interpleader action; Escrow Agent may represent itself in any such
interpleader action and charge its usual and customary legal fees for such
representation, and the court shall award such attorneys' fees, including
those for appellate matters and for paralegals and similar persons, to
Escrow Agent from the losing party. Escrow Agent shall be fully protected
in suspending all or part of its activities under this Agreement until a
final judgment in the interpleader action is received.
(e) Escrow Agent may consult with counsel of its own choice, including counsel
within its own firm, and shall have full and complete authorization and
protection in accordance with the opinion of such counsel. Escrow Agent
shall otherwise not be liable for any mistakes of fact or errors of
judgment, or for any acts or omissions of any kind unless caused by its
gross negligence or willful misconduct.
(f) Escrow Agent may resign upon five (5) days' written notice to Seller and
Buyer. If a successor escrow agent is not appointed jointly by Seller and
Buyer within the five (5) day period, Escrow Agent may petition a court of
competent jurisdiction to name a successor.
(g) The provisions of this section shall survive the Closing and also the
cancellation of this Agreement.
[SIGNATURES APPEAR ON NEXT PAGE]
Exhibit 10.27 - Page 22
IN WITNESS WHEREOF, the parties have set their hands and seals the day and year
first above written.
WITNESSES:
BUYER:
LAKE CRYSTAL MRK-HFAH, INC., a Florida corporation
s/s Xxxxxx XxxXxxxxxx
----------------------------
By: Xxxxxx XxxXxxxxxx
Its: Chief Executive Officer
SELLER:
OKEECHOBEE INVESTMENT, L.L.C., a Florida limited liability company
By: Okee, Inc., a Florida corporation, its managing member
s/s E. Xxxxx Xxxxxxxxxx
----------------------------
E. Xxxxx Xxxxxxxxxx
By:
Its:
Exhibit 10.27 - Page 23
