PURCHASE AND SALE CONTRACT
Exhibit 6.22
STATE
OF NORTH CAROLINA
COUNTY
OF XXXXXXXXX
THIS PURCHASE AND SALE CONTRACT
(“Agreement”) is made and entered into this the _____
day of March 1, 2019 by and between MHP Pursuits LLC, a North
Carolina limited liability company, as Buyer, and Crestview LLC and
A & A Construction Enterprises LLC, both North Carolina limited
liability companies, as Sellers.
WITNESSETH:
WHEREAS, Crestview LLC
(“Crestview”) owns certain real property located in
Xxxxxxxxx County, North Carolina, being known and more particularly
described as Crestview Estates Mobile Home Park, Xxxxx Xxxx, Xxxx
Xxxx Xxxx, XX 00000 and described in Deed Book 946, Page 295, of
the Xxxxxxxxx County Registry, together with improvements located
upon said real property (collectively “Real Property”)
and oral leases for mobile home spaces, as listed in “Exhibit
A” attached hereto; and
WHEREAS, A & A Construction
Enterprises LLC (“A & A”) owns numerous mobile
homes, as listed in “Exhibit B” attached hereto,
located upon mobile home spaces leased from Crestview, together
with numerous oral leases for said mobile homes, as listed in
“Exhibit C” attached hereto; and
WHEREAS, A & A owns certain office
equipment and other equipment located on the Real Property, as
listed in “Exhibit D” attached hereto; and
WHEREAS, MHP Pursuits LLC
(“Buyer”) desires to purchase from Crestview the Real
Property and oral leases (Exhibit A) and to purchase from A & A
the mobile homes (Exhibit B), oral leases (Exhibit C) and equipment
(Exhibit D) in accordance with the terms and conditions set forth
below; and
WHEREAS, Crestview has agreed to sell to
the Buyer the Real Property and oral leases (Exhibit A) in
accordance with the terms and conditions set forth below;
and
WHEREAS, A & A has agreed to sell to
the Buyer the mobile homes (Exhibit B), oral lease (Exhibit C), and
equipment (Exhibit D) in accordance with the terms and conditions
set forth below.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged by the respective parties, the parties agree as
follows;
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1.
The Buyer agrees to purchase from Crestview, and Crestview agrees
to sell to the Buyer, on the terms and conditions set forth in this
Agreement, the following assets:
a.
The Real Property
and improvements located thereon; and
b.
The oral leases as
listed in Exhibit A attached hereto, together with depositsand
advance rental, if any.
2.
The Buyer agrees to purchase from A & A, and A & A agrees
to sell to the Buyer, on the terms and conditions set forth in this
Agreement, the following assets:
a.
The mobile homes as
listed in Exhibit B attached hereto;
b.
The oral leases as
listed in Exhibit C attached hereto, together with depositsand
advance rental, if any; and
c.
The equipment as
listed in Exhibit D attached hereto.
3.
The total purchase price for the assets listed above shall be
$5,500,000.00, allocated as follows:
a.
Crestview:
$2,000,000.00
b.
A &
A:
$3,500,000.00
4.
Upon the execution of this Agreement, the sum of $50,000.00, as
xxxxxxx money, shall be deposited into the trust account of Xxxxxxx
Law Firm, P.A. to be applied as part of the payment of the purchase
price at closing or as otherwise provided in this Agreement. At
closing, the Buyer shall cause to be delivered to Crestview the sum
of $2,000,000.00 and Crestview shall deliver to the Buyer a General
Warranty Deed for the Real Property and an assignment of leases for
the oral leases as listed in Exhibit A. Additionally, at closing,
the Buyer shall cause to be delivered to A & A the sum of
$3,500,000.00 and A & A shall deliver to the Buyer titles for
the mobile homes as listed in Exhibit B, an assignment of leases
for the oral leases as listed in Exhibit C, and a xxxx of sale for
the equipment as listed in Exhibit D.
5.
In the event of a breach of this Agreement by Crestview and/or A
& A, then the xxxxxxx money shall be returned to the Buyer in
full and final satisfaction of any and all claims the Buyer may
have against them, or either of them. In the event of a breach of
this Agreement by the Buyer, provided Buyer fails to cure any
claimed breach within 30 days of written notice and opportunity to
cure, then the xxxxxxx money shall be forfeited. Additionally, if
this Agreement is not terminated within the examination period, set
forth in Paragraph 7 below, and closing does not occur, then the
xxxxxxx money shall be retained by Crestview and A & A as
liquidated damages. Note: In the event of a dispute between the
Buyer and Crestview and/or A & A over the xxxxxxx money held in
escrow, Xxxxxxx Law Firm, P.A. shall retain said xxxxxxx money in
its trust account until it has obtained a written release from the
parties consenting to its disposition or until disbursement is
ordered by a court of competent jurisdiction, or alternatively,
Xxxxxxx Law Firm, P.A. may deposit the disputed monies with the
appropriate clerk of court in accordance with the provisions of
N.C.G.S. 93A-12.
6.
The closing shall occur within 45 days from the expiration of the
examination period or as mutually agreed by the parties. The
parties acknowledge and agree that time is of the essence with
regard to the closing.
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7.
The examination period shall begin on the first date after this
Agreement is signed by all parties, including the receipt Exhibit E
(the due diligence request list) and all items listed on the
schedules to the contract and extend for 60 days therefrom. During
the examination period, the Buyer, and the Buyer’s agents and
employees, shall have the right to enter the Real Property for the
purposes of inspecting the assets listed above and conducting other
investigations, examinations, tests and inspections as the parties
may mutually agree to assess the condition of said assets;
provided, however, that (i) any activities by or on behalf of the
Buyer, including, without limitation, the entry by the Buyer or the
Buyer’s agents or employees onto the Real Property, or the
other activities of the Buyer with respect to the Real Property
(hereinafter called “Buyer’s Activities”) shall
not damage any of the assets listed above or interfere with any of
the residents residing on the Real Property in any manner
whatsoever, (ii) in the event any of the assets listed above are
altered or disturbed in any manner in connection with any
Buyer’s Activities, the Buyer shall immediately return such
asset to the condition existing prior to Buyer’s Activities,
and (iii) the Buyer shall indemnify, defend and hold the Crestview
and/or A & A harmless from and against any and all claims,
liabilities, damages, losses, costs and expenses of any kind or
nature whatsoever (including, without limitation, attorneys’
fees and expenses and court costs) suffered, incurred or sustained
by them, or either of them, as a result of, by reason of, or in
connection with any Buyer’s Activities. In the
event the Buyer shall determine that the transaction contemplated
in this Agreement is not suitable and satisfactory to the Buyer for
any reason whatsoever, the Buyer shall have the right to terminate
this Agreement by giving written notice to Crestview and A & A
prior to the expiration of the examination period. As the result of
such termination, Buyer shall be entitled to the return of all of
the xxxxxxx money.
8.
The Buyer acknowledges that Crestview and/or A & A may deliver
to the Buyer certain documents and information in their possession
with regard to the transaction contemplated in this Agreement
(“Due Diligence
Materials”). The Due
Diligence Materials will be provided to the Buyer without any
representation or warranty of any kind or nature whatsoever and are
merely provided to the Buyer for the Buyer’s informational
purposes. Until the closing, the Buyer, its agents, consultants,
and employees, shall maintain all Due Diligence Materials as
confidential information, and the Buyer and its agents, consultants
or employees shall not disclose such to any third party without the
prior written approval of Crestview and A & A, unless and until
the Buyer is legally compelled to make such disclosure under
applicable laws. If the transaction contemplated in this Agreement
is not consummated in accordance with this Agreement, then,
regardless of the reason or the party at fault, the Buyer shall
immediately re-deliver to the providing party all copies of the Due
Diligence Materials, whether such copies were actually delivered by
Crestview and/or A & A or are duplicate copies made by the
Buyer, its agents, consultants or employees. The provisions of this
Paragraph shall survive the closing or any termination of this
Agreement.
9.
At Closing, Crestview shall convey the Real Property to the Buyer
with good, marketable and insurable title in fee simple by general
warranty deed, free from monetary liens and encumbrances, and
subject only to the following matters: (i) real property taxes
assessed for the current and all subsequent years; (ii) any and all
easements, covenants, rights-of-way, conditions, restrictions,
timber rights, or outstanding royalty interests to minerals, if
any, relating to the Real Property, to the extent, and only to the
extent, that the same may still be in force and effect, and shown
in the public records of Xxxxxxxxx County, North Carolina,
including, without limitation, general utility and drainage
easements of record, and restrictions and protective covenants of
record; (iii) any and all zoning ordinances or other applicable
governmental regulations affecting the Real Property; and (iv) oral
leases for mobile homes on the Real Property. Crestview shall also
convey to the Buyer all oral leases as listed in Exhibit A by an
assignment of leases.
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10.
At Closing, A & A shall convey the mobile homes as listed in
Exhibit B to the Buyer with good, and marketable title by North
Carolina DMV titles, free from monetary liens and encumbrances, and
subject only to the following matters: (i) property taxes assessed
for the current and all subsequent years; (ii) any and all zoning
ordinances or other applicable governmental regulations affecting
the mobile homes; and (iii) oral leases relating to each such
mobile home. A & A shall also convey to the Buyer all oral
leases as listed in Exhibit C by an assignment of leases, and shall
further convey to the Buyer all equipment as listed in Exhibit D,
free from monetary liens and encumbrances, and subject only to
property taxes assessed for the current and all subsequent years,
if any, by a xxxx of sale.
11.
The following prorations and adjustments shall be made at the
closing:
a.
All city, state and county taxes and similar impositions levied or
imposedupon or assessed against any of the assets listed above
(“Taxes”), for the year inwhich the closing occurs
shall be prorated as of the date of the closing on a calendar year
basis;
b. All
rents (including base rent, percentage rent and all other
rentals), payments for
taxes, payments for insurance, payments for common
area maintenance charges,
payments for operating expenses and other payments
on account of financial
obligations of Crestview and/or A & A which have actually been
paid prior to the date of the closing shall be prorated as of the
date of the closing; and
c. Any
other items which are customarily prorated in connection with
the purchase and sale of
properties similar to the assets listed above shall be
prorated as of the date of
the closing.
In the
event that the amount of any item to be prorated is not
determinable at the time of the closing, then such proration
shall be made on the basis of the best available information,
and the parties shall re-prorate such item promptly upon receipt of
the applicable bills therefor and shall make between themselves any
equitable adjustment required by reason of any difference between
the estimated amount used as a basis for the proration at the
closing and the actual amount subject to proration. In the event
any prorated item is due and payable at the time of the closing,
the same shall be paid at the closing.
12.
Crestview and A & A shall bear and pay for the preparation all
documents necessary to perform their respective obligations under
this Agreement, and for state and county excise taxes required by
law. The Buyer shall bear and pay for all costs necessary to
perform its obligations under this Agreement, and for any loan,
appraisal, title search, title insurance, recording of the general
warranty deed, transfer of titles for the mobile homes, and for
preparation and recording of all instruments required to secure any
loan. All other costs will be paid for as is customary in the local
jurisdiction.
13.
Crestview and A & A shall surrender possession of the assets
listed above to the Buyer at the closing.
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14.
If any portion of the assets listed above is damaged or destroyed
by casualty prior to closing, then the Crestview and/or A & A
shall give the Buyer prompt written notice thereof. The Buyer shall
then have the right, at the Buyer’s option, to terminate this
Agreement by giving written notice to Crestview and A & A on or
before 20 days after the date upon which the Buyer was given
written notice of such casualty, in which event all rights and
obligations of the parties under this Agreement shall expire, and
this Agreement shall become null and void.
15.
All negotiations relative
to this Agreement and the purchase and sale of the assets listed
above as contemplated by and provided for in this Agreement have
been conducted by and between the Buyer, Crestview and A & A
without the intervention of any person or other party as agent or
broker. The Buyer, Crestview and A & A warrant and represent to
each other that they have not entered into any agreement or
arrangement and have not received services from any broker or
broker’s employees or independent contractors, and there are
and will be no broker’s commissions or fees payable in
connection with this Agreement or the purchase and sale of the
assets listed above by reason of their respective dealings,
negotiations or communications. Therefore, each party shall
indemnify, defend and hold each other harmless from and against any
claims by third parties for broker or related fees. Any such
indemnification shall encompass any and all claims, liabilities,
damages, losses, costs and expenses of any kind or nature
whatsoever (including, without limitation, attorneys’ fees
and expenses and court costs) suffered, incurred or sustained by
them, or either of them, as a result of, by reason of, or in
connection with any broker or broker’s employees or
independent contractors.
16.
General
Provisions.
(a)
Notices.
Whenever any notice, demand or request is required or permitted
underthis Agreement, such notice, demand or request shall be in
writing and shall be deliveredby hand, be sent by registered or
certified mail, postage prepaid, return receipt requested, or be
sent by nationally recognized commercial courier for next business
day delivery, to the addresses set forth below their respective
executions hereof, or to such other addresses as are specified by
written notice given in accordance herewith, or shall be
transmitted by facsimile to the number for each party set forth
below their respective executions hereof, or to such other numbers
as are specified by written notice given in accordance herewith.
All notices, demands or requests delivered by hand shall be deemed
given upon the date so delivered; those given by mailing as
hereinabove provided shall be deemed given on the date of deposit
in the United States Mail; those given by commercial courier as
hereinabove provided shall be deemed given on the date of deposit
with the commercial courier; and those given by facsimile shall be
deemed given on the date of facsimile transmittal. Nonetheless, the
time period, if any, in which a response to any notice, demand or
request must be given shall commence to run from the date of actual
receipt of the notice, demand or request by the addressee thereof.
Any notice, demand or request not received because of changed
address or facsimile number of which no notice was given as
hereinabove provided or because of refusal to accept delivery shall
be deemed received by the party to whom addressed on the date of
hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third
calendar day following deposit in the United States Mail, as the
case may be. Transition of documents via email is
acceptable.
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(b)
Facsimile as
Writing. The parties expressly acknowledge
and agree that,notwithstanding any statutory or decisional law to
the contrary, the printed product of afacsimile transmittal shall
be deemed to be “written” and a “writing”
for all purposes of this Agreement.
(c)
Assignment.
Unless to an affiliated entity, this Agreement may not be assigned
by the Buyer, in whole or inpart, without the prior written consent
of Crestview and A & A, and any such assignmentwithout such
consent shall be null and void and of no force or effect. Crestview
and/or A & A may assign this Agreement; provided said
assignment does not interfere with the rights of Buyer, or release
Sellers from their respective their obligations, representations
and duties of which occurred prior to the assignment. Subject to
the foregoing, this Agreement shall be binding upon and enforceable
against, and shall inure to the benefit of, the Buyer, Crestview, A
& A and their respective legal representatives, successors and
permitted assigns.
(d)
Severability.
If any term, covenant, condition or provision of thisAgreement,
orthe application thereof to any person or circumstance, shall ever
be held to be invalid orunenforceable, then in each such event the
remainder of this Agreement or the application of such term,
covenant, condition or provision to any other person or any other
circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and
enforceable to the fullest extent permitted by law.
(e)
Non-Waiver.
Failure by any party to complain of any action, non-action or
breachof any other party shall not constitute a waiver of any
aggrieved party’s rights hereunder.Waiver by any party of any
right arising from any breach of any other party shall not
constitute a waiver of any other right arising from a subsequent
breach of the same obligation or for any other default, past,
present or future.
(f)
Rights
Cumulative. All
rights, remedies, powers and privileges conferred underthis
Agreement on the parties shall be cumulative of and in addition to,
but not restrictiveof or in lieu of, those conferred by
law.
(g)
Time of
Essence; Dates. Time
is of the essence of this Agreement.Anywhere a day certain is
stated for payment or for performance of any obligation,the day
certain so stated enters into and becomes a part of the
consideration for this Agreement. If any date set forth in this
Agreement shall fall on, or any time period set forth in this
Agreement shall expire on, a day which is a Saturday, Sunday,
federal or state holiday, or other non-business day, such date
shall automatically be extended to, and the expiration of such time
period shall automatically to be extended to, the next day which is
not a Saturday, Sunday, federal or state holiday or other
non-business day. The final day of any time period under this
Agreement or any deadline under this Agreement shall be the
specified day or date, and shall include the period of time through
and including such specified day or date.
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(h)
Applicable
Law. This Agreement
shall be governed by, construed under andinterpreted and enforced
in accordance with the laws of the State of
NorthCarolina.
(i)
Entire
Agreement; Modification. This Agreement supersedes all
priordiscussions and agreements among the Buyer, Crestview and A
& A with respect to thepurchase and sale of the assets listed
above and other matters contained herein, and this Agreement
contains the sole and entire understanding among the Buyer,
Crestview and A & A with respect thereto. This Agreement shall
not be modified or amended except by an instrument in writing
executed by or on behalf of the Buyer, Crestview and A &
A.
(j)
Counterparts.
This Agreement may be executed in several counterparts, each
ofwhich shall be deemed an original, and all of such counterparts
together shall constituteone and the same instrument.
(k)
Attorney’s
Fees. In the event of
any litigation between the Buyer and Crestviewor A & A arising
under or in connection with this Agreement, the prevailing party
shall beentitled to recover from the other party the expenses of
litigation (including reasonable attorneys’ fees, expenses
and disbursements) incurred by the prevailing party.
(l)
Authority.
Each party hereto warrants and represents that such party has full
andcomplete authority to enter into this Agreement and each person
executing this Agreementon behalf of a party warrants and
represents that he has been fully authorized to execute this
Agreement on behalf of such party and that such party is bound by
the signature of such representative.
(m)
Counsel.
Each party hereto warrants and represents that each party has
beenafforded the opportunity to be represented by counsel of its
choice in connection with theexecution of this Agreement and has
had ample opportunity to read, review, and understand the
provisions of this Agreement.
(n)
No
Construction Against Preparer. No provision of this Agreement shall
beconstrued against or interpreted to the disadvantage of any party
by any court or othergovernmental or judicial authority by reason
of such party’s having or being deemed to have prepared or
imposed such provision.
(o)
Further
Assurances.
Each
party, on receipt of notice from the other party, shall sign, or
cause to be signed, all further documents, do, or cause to be done,
all further acts, and provide all assurances as may reasonably be
necessary or desirable to give effect to the terms of this
agreement.
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IN WITNESS WHEREOF, the parties have
caused their duly authorized representatives to execute and deliver
this Agreement, all as of the day and year first written
above.
|
BUYER:
|
SELLERS:
|
|
MHP Pursuits
LLC
By:______________________________
Its:
_______________________
|
Crestview
LLC
By:______________________________
Its:
_______________________
A &
A Construction Enterprises LLC
By:______________________________
Its:
_______________________
|
| Initial address for notices: | |
| Crestview LLC | Beaver Creek CRE |
|
A &
A Construction Enterprises LLC
____________________________________
____________________________________
____________________________________
Attention:
___________________________
Telephone Number: (
)________________
Telecopy Number: (
)
_______________
|
____________________________________
____________________________________
____________________________________
Attention:
___________________________
Telephone Number: (
)________________
Telecopy Number: (
) _______________
|
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