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