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EXHIBIT 2.3
AGREEMENT OF SALE
This AGREEMENT OF SALE is made and entered into this 24th day of November,
1997, by and between SOUTHFORK GROWTH & INCOME FUND - KANSAS CITY, LTD. (the
"Seller"), a Texas limited partnership, having its principal office at 000
Xxxxx Xx. Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP (the "Purchaser"), a Michigan limited partnership having
its principal office at 00000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000, or its designee or assignee.
R E C I T A L S:
A. Seller is the owner of parcels of real property (the "Land") located in
the City of Xxxxxx, Xxxx County, Missouri, containing 482 developed manufactured
home sites on approximately 80 acres, commonly known as Southfork Mobile Home
Park, as more fully described in Exhibit "A" attached hereto and made a part
hereof, together with the buildings, structures, improvements and manufactured
home sites on, above or below the Land, and all fixtures attached to, a part of
or used in connection with the improvements, structures, buildings and
manufactured home sites, and the parking, facilities, walkways, ramps and other
appurtenances relating to the Land (collectively the "Improvements").
B. Seller is the owner of all machinery, equipment, goods, vehicles,
manufactured homes and other personal property (collectively the "Personal
Property") described in Exhibit "B" attached hereto and made a part hereof,
which is located at or useable in connection with the ownership or operation of
the Land and Improvements.
C. The Land, the Improvements, and the Personal Property, together with
all of Seller's right, title and interest in and to all licenses, permits and
franchises issued with respect to the use, occupancy, maintenance or operation
of the Land and Improvements, all right, title and interest, if any, of Seller
in and to any land lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining the Land to the center line thereof, all
easements appurtenant to the Land, including, but not limited to, privileges or
rights of way over adjoining premises inuring to the benefit of the Land, or the
fee owner thereof, and all rights of use, air, mineral and subsurface rights,
servitudes, licenses, tenements, hereditaments and appurtenances now or
hereafter belonging to the foregoing are hereinafter sometimes collectively
referred to as the "Project".
D. Seller desires to sell the Project to Purchaser, and Purchaser desires to
purchase the Project from Seller, all upon the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
promises hereinafter set forth, and the purchase monies to be paid by Purchaser
to Seller, IT IS HEREBY AGREED:
1. AGREEMENT TO SELL.
1.1 Seller hereby agrees to sell the Project to Purchaser, and Purchaser
hereby agrees to purchase the Project from Seller, in accordance with the terms
and subject to the conditions hereinafter set forth.
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2. PURCHASE PRICE AND PAYMENT THEREOF.
2.1 The aggregate purchase price (the "Purchase Price") for the Project is
the sum of Ten Million Two Hundred Fifty Thousand Dollars ($10,250,000.00). The
Purchase Price, adjusted as provided in Section 8 of this Agreement, shall be
payable by Purchaser to Seller on the Closing Date (as herein defined) by
certified or cashier's check or wire transfer of immediately available funds to
Seller's designated financial institution.
2.2 The Purchase Price shall be allocated among the Land, Improvements and
Personal Property in accordance with the schedule attached hereto as Exhibit "C"
and made a part hereof by this reference.
3. PERMITTED EXCEPTIONS.
3.1 The Project shall be sold and conveyed to Purchaser subject only to the
following matters (the "Permitted Exceptions"):
(a) Those liens, encumbrances, easements and other matters set forth on
Schedule B-2 of the Commitment to be delivered pursuant to Section 4.1
hereof which the Purchaser does not designate as Title Defects pursuant to
Section 5.1 hereof;
(b) The rights of parties in occupancy of all or any portion of the
Land and Improvements under leases, subleases or other written agreements,
to the extent set forth and described in the current Rent Roll (the "Rent
Roll") attached hereto as Exhibit "D", as the same shall be updated to the
Closing Date; and
(c) All presently existing and future liens for unpaid real estate
taxes, assessments for public improvements installed after the Closing Date,
and water and sewer charges and rents, subject to adjustment thereof as
hereinafter provided.
4. EVIDENCE OF TITLE; SURVEY; LIEN SEARCHES.
4.1 Within ten (10) days after the date hereof, Seller shall furnish
Purchaser with a commitment (the "Commitment") for an A.L.T.A. Form B Owner's
Policy of Title Insurance, without standard exceptions, issued by a nationally
recognized title insurance company reasonably acceptable to Purchaser (the
"Title Company"), along with copies of all instruments described in Schedule B
of the Commitment, in the amount of the Purchase Price, and showing marketable
and insurable title in the Seller subject only to: (a) the Permitted Exceptions;
and (b) such other title exceptions pertaining to liens or encumbrances of a
definite or ascertainable amount which may be removed by the payment of money at
the Closing, and which the Seller has the right to remove and shall cause to be
removed at or prior to Closing (the "Removable Liens"). At Closing, the Seller
shall cause to be provided to Purchaser, at Seller's expense, a policy of title
insurance issued pursuant to the Commitment, insuring the interest in the
Project being acquired by Purchaser without the "standard exceptions" and
containing such additional endorsements as Purchaser shall reasonably request.
4.2 Within fifteen (15) days after the date hereof, Seller shall furnish
Purchaser with a current ALTA "as built" survey (the "Survey") of the Project
prepared by Xxxxx-Xxxxxxx and Associates, Inc., certified to the Purchaser, the
Title Company, and any other parties designated by Purchaser, using
substantially the form attached as Exhibit "E" hereto. The Survey shall show
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the legal description of the Land, the total acreage of each parcel comprising
the Land, all structures and improvements located thereon (other than
manufactured homes), all boundaries, courses and dimensions, set-back lines,
easements and rights of way (including any recording references), the location
of all highways, streets and roads upon or adjacent to the Land, and the
location of all utility lines and connections with such utility lines. The
Survey shall be sufficient for removal of the standard survey exception from the
policy of title insurance to be issued pursuant to the Commitment and shall not
reveal any of the following: (i) encroachments on the Project or any portion
thereof from any adjacent property, (ii) the encroachment of the Project, or any
portion thereof, on any adjacent property, or (iii) any violation by any portion
of the Project of any recorded building liens, restrictive covenants or
easements affecting the Project. The Survey shall be in form and content
acceptable to Purchaser and its lenders.
4.3 Prior to the Closing Date, the Seller shall deliver to Purchaser Uniform
Commercial Code financing statement and tax lien searches with respect to the
Seller from the State of Missouri, the County of Cass, Missouri, and the State
of Seller's principal office, if not Missouri, dated within ten (10) days prior
to the Closing, showing no security interests, pledges, liens, claims or
encumbrances in or affecting the Project, including the Personal Property,
except for security interests of a definite or ascertainable amount which may be
removed by the payment of money at Closing and which the Seller has a right to,
and does remove at Closing.
5. TITLE OBJECTIONS.
5.1 If the Commitment or Survey discloses exceptions which are not
acceptable to Purchaser, in its sole discretion, other than the Removable Liens,
Purchaser may notify Seller in writing of its objections to such exceptions (the
"Title Defects"), and Seller may elect to cure any such Title Defects. If
Purchaser objects to any exception disclosed on the Commitment or Survey, such
exception shall not be treated as a Permitted Exception hereunder. If Seller
fails to have the Title Defects deleted from the Commitment or Survey, as the
case may be, or discharged within ten (10) days after receipt of notice from
Purchaser (or such longer time period designated by Purchaser) or to remove the
Removable Liens at or prior to Closing as required herein, Purchaser may: (a)
terminate this Agreement by delivery of written notice to Seller, whereupon the
Deposit, as herein defined, shall be returned immediately to Purchaser, and
neither Seller nor Purchaser shall have any further duties or obligations under
this Agreement; or (b) elect to take title as it then is. If Seller causes such
Title Defects to be deleted from the Commitment, the Closing shall be held
within seven (7) days after delivery of the revised Commitment and Survey or on
the Closing Date specified in Section 18 hereof, whichever is later.
6. INFORMATION AND ACCESS TO PROJECT.
6.1 Within five (5) days after the complete execution hereof, Seller shall
deliver to Purchaser, or make available at the office of the Project, and
thereafter Purchaser shall have access to, the following:
(a) Copies of all leases, subleases, occupancy and tenancy agreements,
and written commitments to lease currently in effect and covering any
portion of the Project (the "Tenant Leases"); all collection and credit
reports pertaining to the Tenant Leases; the monthly management and
operating reports customarily prepared by or on behalf of Seller for the
last twelve (12) calendar months; and the Project's operating budget for the
current year;
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(b) Copies of all equipment leases, service, utility, supply,
maintenance, concession and employment contracts, agreements, and other
continuing contractual obligations (collectively the "Project Contracts")
affecting the ownership or operation of the Project;
(c) Annual statements of the results of the operation of the Project
for each of the last three (3) full calendar years, and copies of federal
tax returns for Seller covering Seller's last three (3) fiscal years;
(d) Architectural drawings, plans and specifications and site plans for
the Project, to the extent available;
(e) Copies of all written notices of any zoning, safety, building,
fire, environmental, health code or other violation relating to the Project
and not cured prior to the date hereof;
(f) Copies of Seller's organizational documents; and
(g) All other financial data, operating data, contracts, leases,
instruments, invoices and other writings relating to the Project in Seller's
possession which Purchaser may reasonably request, which may include,
without limitation, tax bills and correspondence with the tax assessor for
the past two (2) years, rent rolls for the past two years, information
concerning capital improvements installed by the Seller, information
concerning historical rent increases imposed by Seller, a list of recurring
services not furnished to the Project through the Project Contracts,
information concerning any pending or threatened litigation, utility bills
for the past two (2) years, insurance policies and information regarding
insurance claims, certificates of occupancy, existing environmental reports,
appraisals and market studies, and the organizational documents of the
Project's homeowners association, if organized, and any agreements between
the Seller and such homeowners association.
6.2 Within twenty-one (21) days after the date hereof, Purchaser shall
obtain, at Seller's expense, a "Phase 1" environmental audit (the "Environmental
Audit") of the Project, including the Land and Improvements, dated subsequent to
the date hereof and addressed to the Purchaser and its designated lenders,
conducted by an independent environmental investigation and testing firm
reasonably approved by Purchaser, in form and content acceptable to Purchaser,
in its sole discretion. [If the Environmental Audit discloses any condition
which requires further review or investigation, Purchaser may obtain, at its
sole expense, a "Phase 2" environmental audit of the Project.]
6.3 At all reasonable times from and after the date hereof, Seller shall
afford Purchaser and its representatives full and free access to the Project,
including, but not limited to, the right to conduct environmental, soil,
engineering and other tests and to inspect the mechanical, plumbing and utility
systems located at the Project, together with all other aspects of the Project;
provided, however, if Purchaser or its representatives enter upon the Project
pursuant to the terms hereof, Purchaser agrees to indemnify and hold Seller
harmless from all damage caused to any person or the Project as a result of such
entry and the negligent acts or omissions of Purchaser or its representatives.
In the event the transaction contemplated by this Agreement is not consummated,
Purchaser shall restore the Project to its condition prior to Purchaser's test
and inspections if changed due to same. Further, Purchaser shall have the right,
at its expense, to cause its accountant to prepare audited financial statements
of the Seller and its operations at the Project for the calendar years ended
December 31, 1994, December 31, 1995 and December 31,
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1996, and for the period from January 1, 1997 through the calendar month
preceding the Closing Date, and Seller shall cooperate and assist it all
respects with the preparation of the audited financial statements. Seller shall
furnish to Purchaser and its accountants all financial and other information in
its possession or control to enable such accountants to prepare audited
financial statements in conformity with Regulation S-X promulgated by the
Securities and Exchange Commission ("SEC") and any registration statement,
report or disclosure statement filed with, and any rule issued by, the SEC.
Seller also shall provide a signed representation letter as prescribed by
generally accepted auditing standards as promulgated by the Auditing Standards
Divisions of the American Institute of Public Accountants which representation
letter is required to enable an independent public accountant to render an
opinion on such financial statements.
6.4 All information or photocopies of Seller's books and records obtained
hereby shall be held by Purchaser in strict confidence as to the general public
solely for the purpose of evaluating the purchase and financing of the Property
under this Agreement. Any documents obtained by Purchaser from Seller in
connection with this Agreement shall be returned to Seller (or destroyed, at
Seller's election), if this Agreement is terminated prior to Closing.
6.5 PURCHASER ACKNOWLEDGES THAT IT SHALL HAVE THE OPPORTUNITY TO FULLY
INSPECT THE PROJECT AND THE BOOKS AND RECORDS OF THE PROJECT PURSUANT TO SECTION
6 HEREIN, AND THAT UPON ACQUISITION OF THE PROJECT, PURCHASER SHALL BE
CONCLUSIVELY DEEMED TO HAVE ACCEPTED THE PROJECT "AS IS, WHERE IS," WITHOUT
WARRANTY BY SELLER, EITHER EXPRESS OR IMPLIED, SUBJECT ONLY TO THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 9 OF THIS AGREEMENT AND AS
PROVIDED IN SUCH WARRANTY OF TITLE AS MAY BE CONTAINED IN THE DOCUMENTS TO BE
DELIVERED BY SELLER TO PURCHASER AT CLOSING. SUBJECT TO THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN SECTION 9 OF THIS AGREEMENT, PURCHASER ACKNOWLEDGES THAT
PURCHASER HAS NOT AND WILL NOT RELY UPON SELLER AS TO THE CONDITION OF THE
PROJECT, OR ANY OF THE MATTERS MADE OR TO BE MADE AVAILABLE TO PURCHASER FOR
PURCHASER'S INSPECTION AND EXAMINATION, AND PURCHASER SHALL MAKE SUCH
INSPECTIONS AND EXAMINATIONS AS PURCHASER DEEMS ADVISABLE TO DETERMINE THAT ALL
OF SUCH MATTERS ARE IN CONDITION ACCEPTABLE TO PURCHASER. SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONTENT, SUITABILITY
FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS OF ANY AUDITS, REPORTS
OR STUDIES PREPARED BY THIRD PARTIES (HEREIN COLLECTIVELY REFERRED TO AS THE
"EXPERT REPORTS"); ANY RELIANCE UPON SUCH EXPERT REPORTS SHALL BE AT THE SOLE
RISK OF PURCHASER AND PURCHASER HEREBY EXPRESSLY WAIVES ANY RIGHT OF RECOVERY OR
SET-OFF IT MAY HAVE AGAINST SELLER, ITS EMPLOYEES, AFFILIATES, AGENTS AND
REPRESENTATIVES AS A RESULT OF ANY ERRORS OR OMISSIONS THEREFROM. THE PROVISIONS
OF THIS SECTION SHALL SURVIVE THE CLOSING.
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7. ASSIGNMENT OF LEASES, PROJECT CONTRACTS AND INTANGIBLES.
7.1 Seller shall assign to Purchaser on the Closing Date all of
Seller's rights under all Tenant Leases covering any portion of the Project and
all security and other deposits furnished by tenants under the Tenant Leases.
Seller shall deliver to Purchaser all original Tenant Leases and documents and
records with respect thereto. Seller shall indemnify, defend and hold harmless
Purchaser from and against any loss or damage suffered by Purchaser as the
result of any breach of the lessor's obligations under the Tenant Leases which
occurred prior to the Closing Date or as a result of the Seller's failure to
deliver any tenant security or other deposits to the Purchaser. Purchaser shall
indemnify, defend and hold harmless Seller from and against any loss or damage
suffered by Seller as the result of any breach of the lessor's obligations under
the Tenant Leases which occurs subsequent to the Closing Date.
7.2 All Project Contracts which Purchaser, in its sole discretion, has
elected to accept an assignment of by notice to Seller on or prior to the end of
the Investigation Period shall be assigned by Seller to Purchaser on the Closing
Date. Seller shall indemnify, defend and hold harmless Purchaser from and
against any loss or damage suffered by Purchaser as a result of any breach of
Seller's obligations under the Project Contracts which occurred prior to the
Closing Date, whether or not Purchaser has elected to take an assignment of the
Project Contract, or as a result of the Seller's termination of any Project
Contract which is not assigned to Purchaser. Purchaser shall indemnify, defend
and hold harmless Seller from and against any loss or damage suffered by Seller
as a result of any breach of Purchaser's obligations under the Project Contracts
assigned to Purchaser at its request which may occur subsequent to the Closing
Date.
7.3 On the Closing Date, Seller shall assign to Purchaser all of its right,
title and interest in and to: (a) all licenses, permits and franchises then held
by Seller for the Project which may be lawfully assigned and which may be
necessary or desirable, in Purchaser's opinion, to operate the Project; (b) any
warranties and guaranties from manufacturers, suppliers and installers
pertaining to the Project; (c) the name "Southfork Mobile Home Park" and all
variations thereof; (d) the telephone number(s) for all of Seller's telephones
installed at the Project; (e) all architectural drawings, plans and
specifications and other documents in Seller's possession relating to the
development of the Project; (f) all business, operating and maintenance records,
reports, notices and other information concerning the Project; and (g) all other
intangible property related to the Project (collectively, the "Intangible
Property").
8. ADJUSTMENTS AND PRORATIONS.
8.1 The following adjustments and prorations shall be made at the
Closing between Seller and Purchaser computed to, but not including, the Closing
Date.
(a) Real estate taxes and personal property taxes which are a lien upon
or levied against any portion of the Project on or prior to the Closing
Date, and all special assessments levied prior to the Closing Date shall be
paid by Seller. All current real estate taxes and personal property taxes
levied against any portion of the Project shall be prorated and adjusted
between the parties in accordance with local custom and practice in Cass
County, Missouri, as mutually agreed to by Seller and Purchaser and shall be
paid by Seller or Purchaser, as the case may be. If the tax bills for the
year of Closing have not been issued by the Closing Date, Seller and
Purchaser agree to use 105% of the amount of the taxes for the year
immediately preceding the Closing for the purpose of computing the
prorations under this Section 7.1(a).
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(b) The amount of all unpaid water and other utility bills, and of all
other expenses incurred with respect to the Project, relating to the period
prior to the Closing Date, shall be paid by Seller.
(c) Charges under Project Contracts which are assigned to Purchaser at
Purchaser's request shall be paid by Seller, to the extent attributable to
the period prior to the Closing Date, and shall be paid by Purchaser, to the
extent attributable to the period after the Closing Date, and all charges
due under Project Contracts not assigned to Purchaser shall be paid by
Seller.
(d) All rental and other revenues collected by the Seller up to the
Closing Date which are allocable to the period subsequent to the Closing
Date shall be paid by Seller to Purchaser. To the extent Purchaser collects,
within ninety (90) days after the Closing, any rental or revenues allocable
to the period prior to the Closing Date including for water and cable
television charges billed to tenants, the Purchaser shall pay the same to
Seller; provided, however, Purchaser is assuming no obligation whatsoever
for the collection of such rentals or revenues and all rentals and revenues
collected subsequent to the Closing Date shall always, in the first
instance, be applied first to the most current rentals and revenues, if any,
then due under the Tenant Leases or otherwise. Purchaser shall have no
obligation to remit to Seller any such delinquent rents collected later than
ninety (90) days after the Closing.
(e) All security and other deposits held under the Tenant Leases,
together with any interest accrued thereon (to the extent applicable law
requires interest to be paid by the holder of such deposits), shall be paid
by Seller to Purchaser in accordance with the laws of the State of Missouri
or Purchaser shall receive an appropriate credit on the closing statement.
(f) Any real estate transfer tax, intangible tax, documentary tax,
sales taxes, vehicle transfer, sales and use taxes and other taxes or
charges levied on the transfer and conveyance of the Project, whether levied
on the Land, Improvements, Personal Property or otherwise, shall be paid by
Seller.
8.2 If after the closing either Seller or Purchaser discovers any
inaccuracies or errors in the prorations or adjustments done at Closing, Seller
and Purchaser shall take all action and pay all sums necessary so that the said
prorations and adjustments shall be in accordance with the terms of this
Agreement, and the obligations of either party to pay any such amount shall
survive the Closing Date.
9. SELLER'S WARRANTIES.
9.1 The Seller represents and warrants to the Purchaser as of the date
hereof, and as of the Closing Date, the following with the understanding that
each of the representations and warranties are material and have been relied on
by the Purchaser in connection herewith.
(a) True, correct and complete copies of the Tenant Leases, including
all amendments and documents relating thereto, have been or will be
delivered or made available to Purchaser pursuant to Section 6.1(a) hereof;
the Rent Roll attached hereto as Exhibit "D", as updated to the Closing
Date, is and will be an accurate and complete rent roll describing each of
the Tenant Leases, including the name of the tenant, the home site
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occupied by the tenant, the lease term, monthly rent, delinquencies in
rent, deposits paid and any prepaid rent or credits due any tenant; except
as set forth in the Rent Roll, each Tenant Lease is in full force and
effect and not in default and no events have occurred which, with notice or
the passage of time, or both, would constitute such a default; the lessor
has performed all of its obligations under each Tenant Lease; and the
Tenant Leases have not been modified nor have any concessions been made
with respect thereto unless expressly described in the Rent Roll.
(b) To Seller's knowledge, except as otherwise disclosed in Exhibit "F"
attached hereto, Seller has not received any notices of, and Seller, has no
knowledge of any violations of any building, zoning, safety, fire,
environmental, health or other codes, laws, ordinances or regulations with
respect to the Project, the appurtenances thereto or the maintenance, repair
or operation thereof, which will not be cured by the Closing Date, at
Seller's expense.
(c) Except as otherwise disclosed in Exhibit "G" attached hereto,
Seller has not received notice of and has no knowledge of any existing,
pending or threatened litigation or condemnation proceedings or other court,
administrative or extra judicial proceedings with respect to or affecting
the Project or any part thereof.
(d) Except as otherwise disclosed in Exhibit "H" attached hereto,
Seller has no knowledge of any assessments, charges, paybacks, or
obligations requiring payment of any nature or description against the
Project which remain unpaid, including, but not limited to, those for sewer,
water or other utility lines or mains, sidewalks, streets or curbs. Seller
has no knowledge of any public improvements having been ordered, threatened,
announced or contemplated with respect to the Project which have not
heretofore been completed, assessed and paid for.
(e) True and complete copies of all Project Contracts for the Project,
if applicable, and all amendments thereto have been delivered or made
available to Purchaser pursuant to Section 6.1 above; all Project Contracts
are in full force and effect and not in default; all Project Contracts are
listed in Exhibit "I" attached hereto; and except as described in Exhibit
"I", there are no Project Contracts in force with respect to the Project
which are not subject to cancellation upon not more than thirty (30) days
notice without premium or penalty.
(f) Seller is the lawful owner of the Project and holds insurable and
marketable title to the Project, free and clear of all liens and
encumbrances other than the Permitted Exceptions and Removable Liens. The
Seller will have on the Closing Date the power and authority to sell the
Project to Purchaser and perform its obligations in accordance with the
terms and conditions of this Agreement, and each person who executes this
Agreement and all other instruments and documents in connection herewith,
has or will have due power and authority to so act. On or before the Closing
Date, the Seller will have complied with all applicable statutes, laws,
ordinances and regulations of every kind or nature, in order to effectively
convey and transfer all of Seller's right, title and interest in and to the
Project to Purchaser in the condition herein required.
(g) Since the date on which the Seller commenced doing business at the
Project, it has been insured with respect to risks normally insured against,
and in amounts adequate to safeguard the Project.
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(h) Neither this Agreement nor anything provided to be done herein by
Seller, including, without limitation, the conveyance of all of the Seller's
right, title and interest in and to the Project as herein contemplated,
violates or will violate the Seller's governing documents or any contract,
agreement or instrument to which the Seller is a party or bound and which
affects the Project.
(i) Seller has contracted for the furnishing of labor or materials to
the Project in connection with certain road repairs as described in Exhibit
K ("Work") which is anticipated to be paid for in full prior to the Closing
Date, unless the Work has not been completed by Closing, in which event the
Purchaser shall receive a credit at Closing to the Purchase Price for the
amount remaining unpaid for the Work, and Seller shall assign the contract
for the Work to Purchaser and shall obtain the consent to such assignment
from the contractor, and if any claim is made by any party for the payment
of any amount due for the furnishing of labor and/or materials to the
Project or Seller prior to the Closing Date and a lien is filed against the
Project as a result of furnishing such materials and/or labor, Seller will
immediately pay the said claim and discharge the lien.
(j) All utility services, including water, sanitary sewer, gas,
electric, telephone and cable television facilities, are available to the
Project and each home site in sufficient quantities to adequately service
the Project at full occupancy; and to the Seller's knowledge there are no
existing, pending or threatened plans, proposals or conditions which could
cause the curtailment of any such utility service.
(k) To Seller's knowledge, the Project was constructed in conformity
with all governmental rules, regulations, laws and ordinances applicable at
the time the Project was constructed, all Permitted Exceptions, and all
development orders and other requirements imposed by governmental
authorities; provided, however Seller did not construct the Project and
Seller has been involved in litigation with the Project contractor, engineer
and others regarding the construction of the Project as more particularly
described on Exhibit "K" attached hereto. [Other than the specific
representations and warranties set forth in this Section 9, due to the
information disclosed in Exhibit "K" attached hereto, Seller makes no
representation or warranty as to the condition of the mechanical,
electrical, plumbing, utility and other systems necessary for the operation
of the Project, including, without limitation, all underground utility
lines, water xxxxx and roads or as to the existence of any structural or
physical defects in and to the Project. Notwithstanding the foregoing,
Seller has disclosed to Purchaser any structural or physical defects in the
Project or any material defects or problems with the systems identified in
the foregoing sentence of which Seller has actual knowledge.]
(l) Attached hereto as Exhibit "L" is a true and complete list of all
persons employed by the Seller or the manager of the Project in connection
with the operation and maintenance of the Project as of the date hereof,
including name, job description, term of employment, average hours worked
per week, current pay rate, a list of all material employee benefits
provided such employees. Except as provided in any employment contract
furnished to Purchaser, all such employees are terminable at will.
(m) The Project consists of 482 manufactured home sites, approximately
80 acres of Land, and the improvements, amenities and recreational
facilities listed in Exhibit "M" attached hereto and made a part hereof .
Attached hereto as Exhibit "N" is occupancy rate from 6/92 through 11/10/97,
and occupancy data as of 11/10/97. Except as set forth on Exhibit "N", all
unoccupied manufactured home sites which exist at the
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date of Closing, if any, will be in leasable condition without it being
necessary to make any further improvements to permit a tenant to take
possession of, and install a manufactured home on, such home site in
accordance with the Seller's standard form lease and the rules and
regulations applicable to the Project.
(n) To the Seller's knowledge, Seller has delivered or made available
to Purchaser copies of, all licenses, certificates, permits and
authorizations from any governmental authority of any kind which is required
to develop, operate, use and maintain the Project as a manufactured home
park; and to Seller's knowledge all such licenses, certificates, permits and
authorizations are in full force and effect and on the Closing Date shall,
to the extent legally assignable or transferable, be transferred or assigned
to Purchaser. Seller shall take all steps and execute all applications and
instruments reasonably necessary to achieve such transfer or assignment.
(o) Exhibit "B" attached hereto contains a true and complete list of
all Personal Property used in the operation of the Project; such Personal
Property is in good working condition and adequate for the operation of the
Project at full occupancy; and the Seller will not sell, transfer, remove or
dispose of any item of Personal Property from the Project on or prior to the
Closing Date, unless such item is replaced with a similar item of no lesser
quality or value.
(p) To Seller's knowledge, there has not been, and prior to the Closing
Date will not be, discharged, released, generated, treated, stored, disposed
of or deposited in, on or under the Project, and to the best of the Seller's
knowledge based upon the Phase 1 Environmental Site Assessment dated August
6, 1997, prepared by Terracon Environmental, Inc., the Project is free of
and does not contain, any "toxic or hazardous substance", asbestos, urea
formaldehyde insulation, PCBs, radioactive material, flammable explosives,
underground storage tanks, or any other hazardous or contaminated substance
(collectively, the "Hazardous Materials") prohibited, limited or regulated
under the Comprehensive Environmental Response Compensation and Liability
Act, the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act, or under any other applicable
federal, state or local statutes, regulations or ordinances (collectively
the "Environmental Laws"). The Seller has no knowledge of any suit, action
or other legal proceeding arising out of or related to any Environmental
Laws with respect to the Project which is pending or threatened before any
court, agency or government authority, and Seller has not received any
notice that the Project is in violation of the Environmental Laws.
(q) Attached hereto as Exhibit "O" are the balance sheets of the Seller
as at December 31, 1994, December 31, 1995, and December 31, 1996, and
profit and loss statements for the Seller for the 12-month periods ending
December 31, 1994, December 31, 1995, and December 31, 1996 and the ten (10)
month period ending October 31, 1997 (collectively, the "Financial
Statements"). The Financial Statements are true, correct and complete in all
material respects, present fairly and accurately the financial position of
the Seller and the operation of the Project as at such dates and the results
of its operations and earnings for the periods indicated thereon, and have
been prepared in accordance with the accounting basis used for federal
income taxes consistently applied throughout the periods indicated.
(r) Seller has delivered or will deliver to Purchaser true, correct and
complete copies of the information and material referenced in Section 6.1
hereof. To Seller's
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knowledge, nothing contained in this Agreement, the Exhibits attached
hereto or the information and material delivered or to be delivered to
Purchaser pursuant to the terms hereof, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements contained herein or therein not misleading. Seller has not
received any written notice of any fact which would materially adversely
affect the Project or the operation thereof which is not set forth in this
Agreement, the Exhibits hereto, or has not otherwise been disclosed to
Purchaser in writing.
9.2 The provisions of Section 9.1 and all representations and warranties
contained therein shall be true as of the Closing Date and shall survive the
closing of the transaction contemplated herein and the conveyance of the Project
to Purchaser for a period of one (1) year ("Survival Period").
9.3 In the event of a breach with respect to any representation or warranty
made by Seller under Section 9 of this Agreement, the Purchaser shall be
entitled to pursue a claim with respect to such breach as it relates to the
Project if and only if (i) written notice of such breach is given to the Seller
on or prior to the expiration of the Survival Period for such breach, and (ii)
the breached representation and warranty is of the nature that the breach may be
cured, Seller shall have a period of thirty (30) days to cure such breach, or if
incapable of cure within 30 days, for so long as Seller is diligently
undertaking to cure such breach, but in no event longer than 90 days. During
such cure period Purchaser shall not pursue its claim against Seller which
respect to such breach; provided, however, Purchaser shall not be so precluded
from pursuing its claim during the cure period if the Project or its operation
is materially and adversely affect by the event or occurrence which is the basis
for the claim, or an action must be filed to avoid expiration of the applicable
statute of limitations.
10. CONDITIONS.
10.1 Purchaser's obligation to consummate the purchase of the Project is
expressly conditioned upon the following, each of which constitutes a condition
precedent to Purchaser's obligations hereunder which, if not performed or
determined to be acceptable to Purchaser on or before the Closing Date (unless a
different time for performance is expressly provided herein), shall permit
Purchaser, at its sole option, to declare this Agreement null and void and of no
further force and effect by written notice to Seller, whereupon the Deposit
shall be returned immediately to Purchaser, and neither the Seller nor the
Purchaser shall have any further obligations hereunder to the other (provided
that Purchaser shall have the right to waive any one or all of said conditions).
(a) On the Closing Date, title to the Project shall be in the condition
required herein, and the Title Company shall be in a position to issue the
requisite policy of title insurance pursuant to the Commitment.
(b) Seller shall have complied with and performed all covenants,
agreements and conditions on its part to be performed under this Agreement
within the time herein provided for such performance.
(c) Seller's representations, warranties and agreements contained
herein are and shall be true and correct as of the date hereof and as of the
Closing Date in all material respects.
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(d) From and after the date hereof to the Closing Date there shall have
been no material adverse change in or to the Project or the business
conducted thereon which could have an economic effect of $25,000 or more.
(e) The Environmental Audit or audits furnished to Purchaser pursuant
to Section 6.2 shall be satisfactory to the Purchaser in form and content
and shall not indicate the presence of any Hazardous Materials on or about
the Project or contain any matter or information objectionable to the
Purchaser.
(f) Seller's obligation to consummate the purchase of the Project is
expressly conditioned upon Seller's obtaining the requisite approval of its
limited partners to the sale of the Project. This constitutes a condition
precedent to Seller's obligations hereunder which, if not satisfied within
30 days of the date hereof, shall permit Seller, at its sole option, to
declare this Agreement null and void and of no further force and effect by
written notice to Purchaser, whereupon the Deposit shall be returned
immediately to Purchaser, and neither the Seller nor the Purchaser shall
have any further obligations hereunder except pursuant to Sections 6.3 and
6.4.
11. PERIOD FOR INVESTIGATION.
11.1 Commencing on the date hereof, the Purchaser shall have a period of
thirty (30) days (the "Investigation Period") to inspect and investigate all
aspects of the Project, including, without limitation, the physical condition of
the Project, all items of income and expense arising from Seller's ownership and
operation of the Project, and all documents relating thereto. In the event
Seller has failed to deliver or make available to Purchaser any information or
materials required to be made available by it (including, but not limited to,
the information and material required by Section 6.1, the Commitment, the Survey
and the Environmental Audit) within the time required hereunder, the
Investigation Period shall be extended for a period of time equal to the number
of days from the required delivery date of each such item to the actual date of
delivery of all such items. At any time prior to the expiration of the
Investigation Period, as the same may have been extended pursuant to the
provisions of this Section 11.1, and for any reason whatsoever, Purchaser may,
at its option and in its sole and absolute discretion, terminate this Agreement
and receive a refund of the Deposit.
11.2 If Purchaser notifies Seller in writing prior to the expiration of the
Investigation Period, as the same may be extended, that it waives its right to
terminate this Agreement as provided in Section 11.1 above (the "Investigation
Notice"), its right under Section 11.1 to terminate this Agreement shall expire.
If Purchaser does not send the Investigation Notice to Seller prior to the
expiration of the Investigation Period, as the same may be extended, Purchaser,
without further action, shall be deemed to have elected to terminate this
Agreement, the Deposit shall be returned to Purchaser, and Purchaser and Seller
shall have no further obligation to the other hereunder.
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12. OPERATION OF PROJECT.
12.1 From and after the date hereof to the Closing Date, Seller shall: (a)
continue to maintain, operate and conduct business at the Project in
substantially the same manner as prior to the date hereof; (b) perform all
regular and emergency maintenance and repairs with respect to the Project; (c)
keep the Project insured against all usual risks and will maintain in effect all
insurance policies now maintained on the same; (d) not sell, assign or convey
any right, title or interest in any part of the Project; and (e) not change the
operation or status of the Project in any manner reasonably expected to impair
or diminish its value; provided, however: (i) no Tenant Lease shall be executed
or extended for a term in excess of one year; (ii) no Tenant Lease shall be
executed or extended at a rental rate that is less than the present rental for
such space within the Project; and (iii) Seller shall at or prior to the Closing
Date furnish Purchaser with a copy of each new or renewal lease.
12.2 The Purchaser shall have the right, but not the obligation, to hire
those employees of the Seller and the Project's management agent who worked at
or provided services to the Project, effective as of the Closing Date. Upon the
consummation of the transactions contemplated herein, such employees will remain
employees of Seller or the manager unless expressly retained by Purchaser, and
all compensation and fees due such employees, including any amount payable or
that becomes payable as a result of the termination of the employees, and all
costs and taxes attributable to such employment, shall be paid by Seller or the
manager, as the case may be. Effective as of the Closing Date, the Seller shall
terminate the existing manager of the Project and any Project Contracts not
assigned to Purchaser.
12.3 In order to assure to Purchaser the value of the Project and goodwill
being purchased hereunder, each of Seller, and its general partners,
(collectively, the "Restricted Parties") for themselves and their affiliates,
agree that, for a period of three years after the Closing Date, no such person
or entity will engage in the development, ownership or operation of any
manufactured housing or mobile home community located within 25 miles of the
Project, whether such operation involves the lease or sale of sites or lots
therein, and whether such development, ownership or operation is direct or is
indirect, through one or more entities, contractual relationships or familial
relationships, and whether such development, ownership or operation is as owner,
principal, agent, partner, shareholder, officer, director, member, trustee,
beneficiary, employer, employee, consultant, manager, lessor, lessee or
otherwise. The Seller recognizes that irreparable harm will result to the
Purchaser in the event of the violation of any of the covenants contained in
this Section 12.3, and agrees that in the event of any such violation, the
Purchaser shall be entitled, in addition to its other legal and equitable
remedies and damages, to temporary and permanent injunctive relief to restrain
the Restricted Parties from committing any such violations. At Closing, the
Seller shall execute and deliver, and cause the Restricted Parties to execute
and deliver, an agreement confirming their covenants herein.
13. DESTRUCTION OF PROJECT.
13.1 In the event any part of the Project shall be damaged or destroyed
prior to the Closing Date, Seller shall notify Purchaser thereof, which notice
shall include a description of the damage and all pertinent insurance
information. If the use or occupancy of the Project is materially affected by
such damage or destruction or the cost to repair such damage or destruction
exceeds Fifty Thousand Dollars ($50,000.00), Purchaser shall have the right to
terminate this Agreement by notifying Seller within thirty (30) days following
the date Purchaser receives notice of such occurrence, whereupon the Deposit
shall be returned immediately to
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Purchaser, and Seller and Purchaser shall not have any further obligation
hereunder to the other. If Purchaser does not elect to terminate this Agreement,
or shall fail to notify Seller within the said thirty (30) day period, on the
Closing Date Seller shall assign to Purchaser all of Seller's right, title and
interest in and to the proceeds of the fire and extended coverage insurance
presently carried by or payable to Seller.
14. CONDEMNATION.
14.1 If, prior to the Closing Date, either Seller or Purchaser receives or
obtains notice that any governmental authority having jurisdiction intends to
commence or has commenced proceedings for the taking of any portion of the
Project by the exercise of any power of condemnation or eminent domain, or
notice of any such taking is recorded among the public records of the State of
Missouri or Cass County, Purchaser shall have the option to terminate this
Agreement by notifying Seller within thirty (30) days following Purchaser's
receipt of such notice, in which event the Deposit shall be returned immediately
to Purchaser, and Seller and Purchaser shall not have any other or further
liability or responsibility hereunder to the other. If Purchaser does not elect
to terminate this Agreement or shall fail to notify Seller within the thirty
(30) day period, Purchaser shall close the transaction as if no such notice had
been received, obtained or recorded or proceedings commenced, and in such event,
any proceeds or awards made in connection with such taking shall be the sole
property of the Purchaser.
15. DEFAULT BY SELLER OR PURCHASER.
15.1 In the event Seller shall fail to perform any of its obligations
hereunder, Purchaser may, at Purchaser's option and in addition to all other
rights available at law or in equity: (i) terminate this Agreement by written
notice delivered to Seller at or prior to the Closing Date and receive a full
refund of the Deposit; or (ii) obtain specific performance of the terms and
conditions hereof; or (iii) waive Seller's default and proceed to consummate the
transactions with Seller, without a reduction in the Purchase Price.
15.2 In the event Purchaser does not elect to terminate this Agreement as
permitted herein and the conditions precedent to Purchaser's obligation to
purchase the Project have been satisfied or waived by Purchaser, and thereafter
Purchaser fails to purchase the Project on the Closing Date in accordance with
the terms of this Agreement, Seller shall be entitled to terminate this
Agreement and have delivered to Seller, as liquidated damages, the Deposit, the
same being Seller's sole remedy, and Purchaser shall have no further or other
liability hereunder. Seller and Purchaser agree that in the event of a default
by the Purchaser under this Agreement, the Seller's damages would be difficult
or impossible to ascertain, and the amount of the Deposit represents a
reasonable estimate of such damages.
16. DEPOSIT.
16.1 Within five (5) days after the complete execution of this Agreement,
the Purchaser shall deliver the sum of Fifty Thousand and 00/100 ($50,000.00)
Dollars (the "Deposit") to the Title Company (the "Escrow Agent"), to be held
and disbursed pursuant to the terms of an Escrow Agreement in the form of
Exhibit "P" attached hereto and made a part hereof, which shall be executed and
delivered by the Seller, Purchaser and Escrow Agent. All interest earned on the
Deposit shall belong to the Purchaser. If Purchaser terminates this Agreement
pursuant to any right of termination provided for herein, the Deposit shall be
returned to Purchaser.
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17. LIABILITY AND INDEMNIFICATION.
17.1 Purchaser does not and shall not assume any liability for any claims
arising out of the occurrence of any event or the existence of any condition
prior to the Closing Date with respect to the Project.
17.2 From and after the Closing Date, Seller agrees to indemnify, defend and
hold harmless Purchaser, and Purchaser's successors and assigns, from and
against any and all claims, penalties, damages, liabilities, actions, causes of
action, costs and expenses (including attorneys' fees), arising out of, as a
result of or as a consequence of: (i) any property damage or injuries to
persons, including death, which occurred at the Project prior to the Closing
Date or in connection with the Seller's use, possession, operation, repair and
maintenance of the Project prior to the Closing Date; (ii) any breach by Seller
of any of its representations, warranties, or obligations set forth herein or in
any other document or instrument delivered by Seller in connection with the
consummation of the transactions contemplated herein; or (iii) clean up costs
and future response costs incurred by Purchaser under the Environmental Laws
arising with respect to or in connection with a condition which existed or any
event which occurred during Seller's ownership of the Project.
18. CLOSING.
18.1 Subject to the provisions of Sections 5.1 and 10, the closing
("Closing") of the transaction contemplated herein shall take place within ten
(10) days after the expiration of the Investigation Period (the "Closing Date");
provided, however, that if the items to be delivered to Purchaser by Seller
pursuant to Section 4 and 10(e) are not delivered by the dates set forth
therein, the Closing Date shall be extended for a period of time equal to the
number of days from the required delivery date of each such item to the actual
delivery of all such items. The Closing Date shall be designated by Purchaser on
not less than five (5) days prior written notice to Seller. The Closing shall be
held at the office of the Title Company, or on or at such other time or place as
Purchaser and Seller shall agree upon.
18.2 At Closing:
(a) Seller shall execute and deliver a Special Warranty Deed in
recordable form conveying to Purchaser marketable and insurable title to the
Land and Improvements, subject only to the Permitted Exceptions.
(b) Seller shall execute and deliver a Warranty Xxxx of Sale conveying
the Personal Property to Purchaser, free and clear of any liens or
encumbrances other than the Permitted Exceptions, and Seller shall execute
and deliver to Purchaser, in proper form for transfer, the Certificates of
Title pertaining to all vehicles and manufactured homes, if any, being
conveyed to Purchaser hereunder.
(c) Seller and Purchaser shall execute and deliver, in form and content
satisfactory to Purchaser and Seller, and pursuant to Sections 7.1, 7.2 and
7.3 hereof, an Assignment and Assumption Agreement (the "Assignment"),
transferring to Purchaser all of Seller's right, title and interest in and
to: (i) the Tenant Leases and all deposits relating thereto; (ii) the
Project Contracts which Purchaser has elected to have assigned; and (iii)
the Intangible Property. The Assignment shall provide for Seller to
indemnify, defend and hold harmless Purchaser from and against any loss or
damage suffered by Purchaser as the result of any breach of Seller's
obligations under the assumed Project Contracts or
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lessor's obligations under the Tenant leases which occurred prior to
the Closing Date, and for Purchaser to indemnify, defend and hold harmless
Seller from and against any loss or damage suffered by Seller as the result
of any breach of Purchaser's obligations under the assumed Project Contracts
or lessor's obligations under the Tenant leases which occurred subsequent to
the Closing Date.
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(d) Seller shall cause the Commitment referred to in paragraph 4.1
hereof to be recertified and updated to the Closing Date, and shall cause
the policy of title insurance to be issued to Purchaser pursuant to such
updated Commitment together with such endorsements thereto as Purchaser
shall request, at Seller's sole cost.
(e) Purchaser shall deliver to Seller the Purchase Price adjusted as
provided in this Agreement, by certified or cashier's check or wire transfer
of immediately available funds to Seller's designated financial institution.
(f) Seller shall deliver to Purchaser a certificate confirming the
truth and accuracy of Seller's representations and warranties hereunder, and
the Rent Roll, updated to the Closing Date, and prospectus for the Project
then in effect, shall be certified as true and correct in all respects.
(g) Seller and Purchaser shall execute and cause to be delivered to
tenants under the Tenant Leases and all other interested parties written
notice of the sale of the Project to Purchaser together with such other
information or instructions as Purchaser and Seller shall deem appropriate.
(h) Seller shall deliver to Purchaser originals of: (i) the Tenant
Leases, including all amendments thereto and modifications thereof; (ii) all
Project Contracts assigned to Purchaser; (iii) all architectural plans and
specifications and other documents in Seller's possession pertaining to the
development of the Project; and (iv) all collection, expense and business
records and such other documentation reasonably necessary for Purchaser to
continue the operation of the Project.
(i) Seller shall deliver to Purchaser certified copies of resolutions
of the general partner of the Seller, authorizing and approving the
transaction contemplated by this Agreement, and authorizing and directing
the execution and delivery of this Agreement and all documents and
instruments to be executed and delivered by the Seller pursuant to the terms
hereof, certified by an authorized officer of the general partner of Seller
as being true and correct, together with an incumbency certificate from the
secretary of the general partner, certifying as to the power and authority
of the officers of the general partner of Seller who have executed documents
in connection with the transactions contemplated herein. Seller shall also
provide evidence that it has received the requisite consent of its limited
partners to the sale of the Project.
(j) Seller shall deliver to Purchaser an affidavit, in form acceptable
to Purchaser, executed by the Seller, certifying that the Seller and all
persons or entities holding an interest in the Seller are not non-resident
aliens or foreign entities, as the case may be, such that the Seller and
such interest holders are not subject to tax under the Foreign Investment
and Real Property Tax Act of 1980.
(k) Purchaser shall deliver to Seller certificates or such other
instruments reasonably necessary to evidence that the execution and delivery
of this Agreement and all documents to be executed and delivered by
Purchaser hereunder, have been authorized by Purchaser and that all persons
or entities who have executed documents on behalf of Purchaser in connection
with the transaction have due authority to act on behalf of the Purchaser.
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(l) Seller shall execute and deliver to Purchaser a discontinuation of
any assumed name certificate whereby Seller has reserved the right to
conduct business under the name "Southfork Mobile Home Park" or any
variation thereof and, if necessary, in order for Purchaser to use the name
"Southfork Mobile Home Park," Seller shall change its name.
(m) Seller and the Restricted Parties shall execute and deliver to
Purchaser the agreements confirming the covenants set forth in Section 12.3
of this Agreement.
(n) The Seller and Purchaser shall each deliver to the other such other
documents or instruments as shall reasonably be required by such party, its
counsel or the Title Company to consummate the transaction contemplated
herein and/or to cause the issuance of the policy of title insurance which,
in all events, shall not increase such party's liability hereunder or
decrease such party's rights hereunder.
(o) The Seller shall deliver to the Purchaser an opinion of its
counsel, addressed to the Purchaser and satisfactory to the Purchaser in
form and substance, to the effect that this Agreement and the performance of
the Seller's obligations hereunder, has been duly authorized in accordance
with the Seller's governing documents and does not violate the Seller's
governing documents or any contract, agreement or instrument to which the
Seller is a party or bound and which affects the Project.
19. COSTS.
19.1 Purchaser and Seller shall each be responsible for their own counsel
fees and travel expenses. Seller shall pay all other costs and expenses incurred
in connection with the transaction contemplated herein, including, but not
limited to, documentary, intangible and transfer taxes due on the conveyance of
the Project to Purchaser, sales, transfer and other taxes due on the transfer of
any vehicles and manufactured homes to Purchaser, title insurance premiums for
the Purchaser's policy of title insurance, the cost of the Survey and
Environmental Audit and all recording and filing fees. Escrow fees, if any,
shall be borne equally by Seller and Purchaser.
20. BROKERS.
20.1 Purchaser and Seller represent and warrant to the other that they have
not had any direct or indirect dealings with any real estate brokers, salesmen
or agents in connection with the Project, or the transactions contemplated
herein, except The Xxxx Companies. (the "Broker"), whose commission shall be
paid by the Seller. In consideration of said warranty, Purchaser agrees with
Seller that it will pay, and will defend and hold Seller harmless from and
against any and all finder's and/or broker's commissions due or claimed to be
due on account of the transactions contemplated herein and arising out of
contracts made by Purchaser, and Seller agrees with Purchaser that it will pay,
and will defend and hold Purchaser harmless from and against any and all
finder's and/or broker's commissions due or claimed to be due on account of the
transactions contemplated herein and arising out of contracts made by Seller
(including, but not limited to, contracts with or claims of the Broker).
21. ASSIGNMENT.
21.1 Purchaser hereby reserves the right, on or before the Closing Date, to
assign all of its right, title and interest in and to this Agreement or to
transfer its interest in the Project to any
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other person or entity, and upon notice of such assignment to Seller, all terms
and conditions hereof shall apply equally to such assignee as if the assignee
was the original party hereto.
22. CONTROLLING LAW.
22.1 This Agreement shall be controlled, construed and enforced in
accordance with the laws of the State of Missouri.
23. ENTIRE AGREEMENT.
23.1 This Agreement, the Escrow Agreement, and the Exhibits attached
hereto constitute the entire agreement between the parties hereto with respect
to the transactions herein contemplated, and supersedes all prior agreements,
written or oral, between the parties relating to the subject matter hereof. Any
modification or amendment to this Agreement shall be effective only if in
writing and executed by each of the parties hereto.
24. NOTICES.
24.1 Any notice from Seller to Purchaser or from Purchaser to Seller shall
be deemed duly served (i) when personally served, (ii) three (3) days after
deposited in the U.S. certified mail, return receipt requested, (iii) upon
receipt, if sent by telephone facsimile on a business day before 4pm recipient
party's time, otherwise the next business day, with facsimile machine sheet
verifying transmission, or (iv) one (1) business day after sent via "overnight"
courier service, addressed to such party as follows:
If to Seller: Southfork Growth & Income Fund,
Kansas City, Ltd.
000 X. Xx. Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Fax No. (000) 000-0000
With a copy to: Xxxxx X. Xxxxxxx
000 X. Xx. Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
If to Purchaser: Sun Communities, Inc.
00000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxx
Fax No. (000) 000-0000
With a copy to: Xxxx X. Xxxxxxxx
Jaffe, Raitt, Heuer & Xxxxx
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
Either party hereto may change the name and address of the designee to which
notice shall be sent by giving written notice of such change to the other party
hereto as hereinbefore provided.
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25. BINDING.
25.1 The terms hereof shall be binding upon and shall inure to the benefit
of the parties hereto, their successors, transferees and assigns.
26. PARAGRAPH HEADINGS.
26.1 The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this
Agreement or any of the provisions hereof.
27. DAYS AND DEADLINES.
27.1 As used in this Agreement, "days" shall mean and refer to calendar
days, and "business days" shall mean and refer to days which are not a Saturday,
Sunday or legal banking holiday in the State of Missouri or the State of
Michigan. However, if a deadline falls or notice is required on a Saturday,
Sunday, or a legal banking holiday in the State of Missouri or the State of
Michigan, then the deadline or notice shall be extended to the next calendar day
which is not a Saturday, Sunday, or a legal banking holiday.
28. SURVIVAL AND BENEFIT.
28.1 Except as otherwise expressly provided herein, each agreement,
representation or warranty made in this Agreement by or on behalf of either
party, or in any instruments delivered pursuant hereto or in connection
herewith, shall survive the Closing Date and the consummation of the
transactions provided for herein.
28.2 The covenants, agreements and undertakings of each of the parties
hereto are made solely for the benefit of, and may be relied on only by, the
other party hereto, their transferees and assigns, and are not made for the
benefit of, nor may they be relied upon, by any other person whatsoever.
28.3 This Agreement shall not be construed more strictly against one party
then against the other, merely by virtue of the fact that it may have been
prepared by counsel for one of the parties, it being recognized that both
Purchaser and Seller have contributed substantially and materially to the
preparation of this Agreement.
29. COUNTERPARTS.
29.1 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which together shall be deemed one
in the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
SELLER:
SOUTHFORK GROWTH & INCOME FUND-KANSAS
CITY, LTD. A TEXAS LIMITED PARTNERSHIP
By: Mobile Home Communities of America,
Inc., a Texas corporation, General
Partner
IN THE PRESENCE OF:
By:
-------------------------- ------------------------------------
Xxxxx X. Xxxxx
--------------------------
Its: Senior Vice President
PURCHASER:
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: Sun Communities, Inc., its General
Partner
By:
-------------------------- ------------------------------------
Its:
------------------------- -----------------------------------
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LIST OF EXHIBITS
EXHIBIT DESCRIPTION
A. Legal Description of Land
B. Schedule of Personal Property
C. Allocation of Purchase Price
D. Rent Roll
E. Survey Certification
F. Violations (Section 9.1(b))
G. Litigation and Condemnation Proceedings
(Section 9.1(c))
H. Assessments and Other Charges (Section 9.1(d))
I. Project Contracts (Section 9.1(e))
J. Intentionally Deleted
K. Maintenance Problems (Section 9.1(k))
L. List of Employees (Section 9.1(l))
M. List of Facilities (Section 9.1(m))
N. Occupancy Data (Section 9.1(m))
O. Seller's Financial Statements
P. Form of Escrow Agreement
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