ASSET PURCHASE AGREEMENT
This Agreement made between THE MOORINGS OF MANATEE, INC., a Florida
corporation ("Seller") and COMMUNITY ACQUISITION & DEVELOPMENT CORP., a Delaware
corporation, or its assigns ("Purchaser").
INTRODUCTION:
A. Seller is a Florida corporation and is the owner of a manufactured
housing community known as Manatee River Golf and Boating Resort Community
located in Ruskin, Florida (the "Park").
B. Seller wishes to sell the Park, and Purchaser wishes to purchase the
Park on certain terms and conditions. The parties wish to set forth their
agreement in writing.
THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. SALE. Seller agrees to sell and convey and Purchaser agrees
to purchase, for the purchase price herein set forth, the manufactured housing
community commonly known as "MANATEE RIVER GOLF AND BOATING RESORT COMMUNITY"
located in Ruskin, Hillsborough County, Florida, which is more specifically
described as follows:
a. The real property situated in Hillsborough
County, in the State of Florida, comprising
approximately 504 acres, legally described
as set forth in Exhibit "A", together with
all easements, rights of way, privileges,
appurtenances, and rights pertaining
thereto, such real property being herein
referred to as the "Premises";
b. All the Seller-owned improvements located on
the Premises which consist, among other
things, of 244 completed mobile home sites,
a marina clubhouse, a swimming pool, a sales
office, a golf shop, a maintenance building,
a postal center, a laundry building, and
other amenities (but excluding all mobile
homes, except as provided herein) and all
fixtures attached or appurtenant thereto
owned by Seller and located on or used in
connection therewith (all of which are
referred to herein as the "Improvements");
c. All leases, deposits, and other occupancy
arrangements in effect with respect to such
mobile home sites and any other improvements
and prepaid rents, franchises, and permit
rights relating to the Park (herein referred
to as the "Leases");
d. All fixtures (other than new mobile homes),
equipment, supplies, and other personal
property attached to, appurtenant to or used
in connection with and located on the
Premises including, but not limited to,
promotional materials, names, logos, and
those items described in Exhibit "B"
(referred to herein as the "Personal
Property"), and owned by Sellers;
e. The service agreements for the operation of
cable TV, laundry, telephone system
(including all of Seller's rights to the
telephone numbers for the Park) and other
services pertaining to the Park described in
Exhibit "C" (herein referred to as the
"Service Contracts"); and
f. All plans, specifications, site plans,
assignable permits, and any other
governmental approvals pertaining to the
ownership or operation of the Park and the
development of uncompleted portions of the
Park (herein referred to as the "Development
Contracts").
The Premises, the Improvements, the Leases, the Personal Property, the
Service Contracts, and the Development Contracts are sometimes collectively
referred to as the "Property" or the "Park".
2. PURCHASE PRICE. The purchase price for the Property, which
Purchaser hereby agrees to pay to Seller, is the sum of EIGHT MILLION THREE
HUNDRED FORTY-SEVEN THOUSAND TWO HUNDRED FORTY-SEVEN AND NO/100 Dollars
($8,347,247.00) (the "Purchase Price"), which amount (including the application
of the xxxxxxx money deposit) shall be paid as follows:
a. The xxxxxxx money deposits, as specified in
Paragraph 3, and all interest thereon shall
be credited toward the Purchase Price at
closing;
b. The balance shall be due and payable in
certified funds, or the equivalent thereof,
at closing.
3. XXXXXXX MONEY DEPOSIT. Purchaser will deliver to
Livingston, Patterson, Xxxxxxxxxx & Weiner, P.A. (herein referred to as the
"Escrow Agent") an xxxxxxx money deposit in the following amounts and at the
following times:
a. Within two (2) business days of the
Effective Date, the sum of One Hundred
Thousand and No/100 Dollars ($100,000.00).
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All sums deposited with the Escrow Agent will be held in an interest
bearing trust account as the xxxxxxx money deposit for the transaction described
herein.
In the event that the transaction contemplated hereby is consummated in
accordance with the terms and conditions hereof, the Escrow Agent shall apply
the xxxxxxx money deposit to the purchase price due on the date of closing. In
the event that the transaction contemplated hereby is not so consummated, the
xxxxxxx money deposit shall be paid to Purchaser unless Seller is entitled to it
under Paragraph 11 due to a default by Purchaser. The interest is to be paid to
the party entitled to the deposit.
Sole liability of the Escrow Agent shall be to deposit the funds in an
interest-bearing account and to disburse said funds according to the terms of
this Agreement. No fees shall be charged by Escrow Agent for setting up the
escrow and administering it. However, notwithstanding the foregoing, in the
event of a breach of this Agreement by either of the Seller or the Purchaser,
and in the event of a dispute as to the disposition of said escrowed funds, the
parties hereto agree to allow the Escrow Agent to hold said funds during any
court proceedings, and shall indemnify and hold harmless the Escrow Agent from
all liability hereunder and shall reimburse the Escrow Agent for all court costs
and attorneys' fees incurred by it, including attorneys' fees on appeal in the
event it is joined in any legal proceedings regarding this Agreement.
The parties acknowledge that Escrow Agent is acting as counsel for
Seller. This shall not prevent Escrow Agent from representing Seller in any
action arising out of or related to this Agreement, and the Purchaser, who
represents that it has consulted with its legal counsel as to the ramifications,
expressly waives any right to object to such representations.
4. ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated as follows:
a. Premises (land) $3,121,497
b. Improvements $4,989,000
c. Tangible Personal Property $ 236,750
5. EXPENSES OF SALE. Seller shall pay for recording any
satisfactions of mortgage or corrective instruments. Purchaser shall pay Six
Thousand Seven Hundred Fifty and no\100 Dollars ($6,750.00) toward the cost of
the title insurance and Seller shall pay the remainder. Seller shall pay for
recording any affidavits required by Chapter 723, Florida Statutes. Seller shall
pay the cost of the survey. Purchaser shall pay for the documentary stamps on
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the consideration for the deed. Purchaser shall pay the cost of the prepayment
fee due on Seller's mortgage with NationsBank, which is estimated to be $146,660
(the "Prepayment Fee", which is subject to adjustment in accordance with
paragraph 6.f. below.) Purchaser shall pay the cost of any inspections or other
investigation it has performed or obtained and the expense of recording the
deed. Purchaser shall pay any sales tax that may be owed on the transfer of
title of motor vehicles.
6. APPORTIONMENTS AND ADJUSTMENTS. The following items shall
be apportioned between Seller and Purchaser as of the date of closing, on the
basis that Seller owns the Property on the date of closing:
a. All real estate and personal property taxes
and assessments, including all unpaid
portions of any general or specific
assessments for the year 1998 real estate
and personal property taxes and assessments
for the year in which the closing occurs,
the parties shall adjust and apportion such
amounts based upon the discounted amount of
such taxes. If closing occurs at a date when
the current year's taxes are not fixed, and
the current year's assessment is available,
taxes will be prorated based upon such
assessment and the prior year's millage. If
the current year's assessment is not
available, taxes will be prorated based on
the prior year's taxes. Accordingly, Seller
shall be responsible for such taxes from
January 1, 1998, to and including the date
of closing and Purchaser shall be
responsible for such taxes after the day of
closing. A final adjustment for such taxes
shall be made between the parties at such
time as the exact amount of such taxes
becomes known.
b. The amount of any and all tenant deposits
held or bonded by Seller, or its
representatives, as of the date of closing,
shall be verified and assigned to Purchaser,
including and without limitation security
deposits, rental deposits in which a tenant
of the Property has any continuing interest
and all interest thereon for which Seller is
obligated. Seller shall not apply or forfeit
any such security deposit unless the
applicable tenant vacates the Property or is
evicted therefrom prior to the date of
closing.
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c. Seller or an affiliate, Moorings Development
and Marketing Corporation, shall be solely
responsible to pay, or cause to be paid,
prior to closing, all accrued wages, social
security, payroll taxes, unemployment
compensation, worker's compensation,
vacation pay, fringe benefits and items of a
similar nature due persons employed in
connection with the operation and
maintenance of the Property through the
closing date. Purchaser may, in its sole
discretion, maintain the on-site staff on a
trial basis; however, the employment of all
persons employed by Seller in connection
with the operation and maintenance of the
Property shall be terminated at closing, and
Seller shall deliver proof of such
termination at closing; provided, however,
that Seller shall notify Purchaser before
actually notifying such persons of the
termination of their employment.
d. Purchaser shall receive a credit for all
rents and other charges paid by tenants to
Seller, or its representatives, applicable
to periods subsequent to the date of
closing, as if the rent for said month had
been timely paid. At the closing, Seller
shall deliver to Purchaser a schedule, which
shall contain the following information with
respect to each mobile home site: rental
amount; the date through which rent has been
paid; the amount of the security deposit,
pet deposit, and any and all other deposits
or fees paid by the tenant; and such other
information as shall fully advise Purchaser
of the occupancy status of each mobile home
site. This schedule shall also disclose (a)
all tenants who are delinquent in the
payment of rents, (b) the amount of each
such delinquency, and (c) the period to
which each such delinquency relates and the
nature of the amount due, itemizing
separately fixed monthly rent and any
additional charges. If the tenant under any
Lease is in arrears in the payment of rent
on the date of Closing, rents received from
such tenant after Closing shall be applied
in the following order of priority: (1)
first, to the month in which such rents are
received, (2) then to any rent arrearage for
months subsequent to the month in which
Closing occurs, (3) then to any rent
arrearage for the month in which the Closing
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occurs, (4) then to the period for which the
tenant in question was in arrears prior to
the month in which the closing occurs. If
all or part of any rents, or any escalation
charges for real estate taxes, insurance,
operating expenses, or other charges of a
similar nature, received by Seller or
Purchaser after Closing are payable to the
other party by reason of this allocation,
the appropriate sum shall be promptly paid
to the other party. Seller shall not receive
any credit for delinquent rents at closing;
in other words, Purchaser shall not be
obliged to "buy" the delinquent rents
accruing prior to closing from Seller and
rents shall be prorated as if all delinquent
rents accruing through the date of closing
have been paid. Purchaser agrees to use
reasonable efforts, short of filing a legal
action, to collect any delinquent rents and
Seller shall also have the right to pursue
delinquent rents against any tenant that is
evicted.
e. The parties shall equitably adjust all
water, fuel, and other utility or service
charges so that Seller is charged for and
pays all such items applicable to periods
through and including the date of closing.
In this regard, Seller shall, where
practicable, cause meters to be read and
obtain final invoices through and including
the date of closing. Where this is not
practicable, the parties shall assume equal
per diem use over the period of the billing,
and adjustment shall be made accordingly.
Seller shall assign any deposits to
Purchaser and Seller shall receive a credit
therefor on Closing.
f. The Purchase Price is based on the
assumption that the Prepayment Fee is
$146,660. If the Prepayment Fee is greater
than this sum, Purchaser shall receive a
credit on closing for the difference. If the
Prepayment Fee is less than this sum, Seller
shall receive a credit on closing for the
difference.
g. All prorations shall be applied to the cash
due at closing.
7. INSPECTION. Purchaser acknowledges that it has made all
investigations with respect to the Property and that the Property is acceptable
to Purchaser in its present condition. Purchaser may make additional inspections
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or investigations to the extent necessary to confirm the continued accuracy of
any disclosures, representations, or warranties made by Seller.
8. ASSIGNABILITY. After making the Xxxxxxx Money Deposit,
Purchaser shall have the right to assign its rights and obligations under this
Agreement to a Delaware limited liability company to be formed under the name
CAX Riverside, L.L.C. or another name selected by Purchaser ("Assignee"), as
long as the representations and warranties applicable to Purchaser shall be met
by Assignee.
9. WARRANTIES AND REPRESENTATIONS. The parties make the
following representations to one another in connection with this transaction:
Seller hereby warrants and represents to Purchaser the following. All
of the representations, warranties and agreements set forth below and elsewhere
in this Agreement shall be true upon the execution of this Agreement, shall be
deemed to be repeated at and as of the date of closing, and shall survive the
closing for a period of one year. All such warranties and representations are
made to the present actual knowledge of Xxxxx Xxxxxxx, as President of Seller,
and not otherwise.
a. Except as has been disclosed to Purchaser in
writing as set forth in Exhibit "D", there
is no pending or threatened litigation,
administrative action or examination, claim
or demand whatsoever relating to the
Property before any court, or any federal,
state, or municipal governmental department,
commission, board, bureau, agency, or
instrumentality thereof.
b. Seller is the owner of fee title to the
Property in the condition required for
performance hereunder and except for
curative measures will not cause any
modification thereof through, and including,
the date of closing. At closing, Seller
shall duly convey to Purchaser fee simple
title to the Property, subject only to the
Permitted Exceptions.
c. Seller is not a party to any contract or
agreement of any kind whatsoever, written or
verbal, with any person or entity
whatsoever, with respect to the Property,
other than as set forth in Exhibit "C" and
in Exhibit "F" (the "MDMC and RSI
Contracts"). The MDMC and RSI Contracts are
subject to a separate agreement. Seller is
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not a party to any service contracts or
other agreements affecting the operation of
the Property other than as disclosed in
Exhibit "C" and Exhibit "E". Seller shall
not, without the prior written consent of
Purchaser, enter into any contracts of a
continuing nature (or any renewal of any
existing contract) for services, supplies,
or materials affecting the Park, that cannot
be canceled on thirty (30) days' notice.
d. From and after the date of this Agreement,
Seller shall not amend the Prospectus for
the Park or grant any rental discounts or
concessions to any tenant of the Park, or
enter into any agreement with any tenant
other than the agreement to lease a mobile
home space to the tenant at the scheduled
rental and other scheduled charges shown on
the rent roll attached hereto as Exhibit "G"
without the written consent of Purchaser. As
of its date, the rent roll is true and
correct in all material respects. No rental
shall have been paid more than one (1) month
in advance unless disclosed on the rent
roll, as updated at closing.
e. Seller has previously furnished to Purchaser
true and complete copies of (i) its
unaudited balance sheets as of December 31,
1997, and December 31, 1996, statements of
operations, changes in financial position
and cash flows for the fiscal year ended on
such date and (ii) its unaudited balance
sheets as of August 31, 1998, statements of
operations, changes in financial position,
and cash flow for the eight months ended on
said date (collectively, the "Financial
Statements"). The Financial Statements
fairly present the financial positions of
Seller, and MDMC and RSI as of the dates
thereof and the results of operations and
cash flows for the applicable periods
(except that such unaudited statements do
not contain all required footnotes and,
where applicable, are subject to year-end
adjustments), in accordance with past
practice and United States generally
accepted accounting principles consistently
applied during the periods involved (except
as otherwise disclosed in the notes
thereto).
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f. Except as has been disclosed to Purchaser in
writing as set forth in Exhibit "H", there
are no contingent or non-contingent
liabilities.
g. Except as may be disclosed in those certain
reports of Law Environmental Services dated
February 11, 1998 and July 2, 1998 and the
letter dated July 28, 1998 from the
Environmental Protection Agency of
Hillsborough County (collectively the
"Environmental Report"), there is no pending
or threatened litigation, administrative
action or examination, claim or demand
whatsoever (an "Environmental Claim")
relating to the Property arising out of,
based on, or resulting from the presence of
or release into the environment of any
chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances,
petroleum and petroleum products, asbestos
or asbestos-containing materials,
polychlorinated biphenyls, lead or
lead-based paints or materials.
Additionally, Seller is not aware of any
basis for an Environmental Claim except as
may be disclosed in the environmental
Report.
h. The consummation of the transaction
contemplated by this Agreement will not
result in the breach of any term or
provisions of any mortgage, indenture,
instrument or agreement to which the Seller
is a party.
i. Seller is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Florida.
j. Seller has full power and authority to enter
into this Agreement and to assume and
perform all of its obligations hereunder.
The individual signing this Agreement has
the authority to do so and to bind the
Seller by doing so. To any extent required,
the execution and delivery of this Agreement
and the performance by the Seller of its
obligations hereunder have been duly
authorized and no further action or approval
is required in order to constitute this
Agreement a binding and enforceable
obligation of Seller.
k. Except as expressly set forth in this
paragraph, Seller makes no representation or
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warranty, express or implied, at law or in
equity, in respect of any of its assets
(including, without limitation, the
Property), liabilities or operations,
including, without limitation, with respect
to merchantability or fitness for any
particular purpose, and any such other
representations or warranties are hereby
expressly disclaimed. Purchaser hereby
acknowledges and agrees that, except to the
extent specifically set forth in this
paragraph, the Purchaser is purchasing the
Property on an "as is, where is" basis.
Without limiting the generality of the
foregoing, the Seller makes no
representation or warranty regarding any
assets other than the Property or any
liabilities other than those expressly
assumed, and none shall be implied at law or
in equity.
Purchaser hereby warrants and represents to Seller the following. All
of the representations, warranties and agreements set forth below and elsewhere
in this Agreement shall be true upon the execution of this Agreement, shall be
deemed to be repeated at and as of the date of closing, and shall survive the
closing for a period of one year. All such warranties and representations are
made to the present actual knowledge of the officer signing this Agreement on
behalf of Purchaser and not otherwise.
a. Purchaser is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware.
b. The consummation of the transaction
contemplated by this Agreement will not
result in the breach of any term or
provisions of any mortgage, indenture,
instrument or agreement to which Purchaser
is a party.
c. Purchaser has full power and authority to
enter into this Agreement and to assume and
perform all of its obligations hereunder.
The individual signing this Agreement has
the authority to do so and to bind Purchaser
by doing so. To any extent required, the
execution and delivery of this Agreement and
the performance by Purchaser of its
obligations hereunder has been duly
authorized and no further action or approval
is required in order to constitute this
Agreement a binding and enforceable
obligation of Purchaser.
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d. Purchaser presently has the amount of cash
needed to pay the balance of the Purchase
Price set forth in paragraph 2.b. or has
available a line of credit or similar
financing on which it can immediately draw
in order to make such payment.
10. CONDITIONS TO CLOSING. The following shall constitute
conditions precedent to the obligation of the parties to consummate the closing
described herein:
a. All of the warranties and representations
set forth herein shall be true as of the
date of closing.
11. CLOSING. The closing of the transaction contemplated
hereby shall be held on November 20, 1998, with recording of documents and
disbursement of funds to occur on November 23, 1998 or before fourteen (14) days
from the Effective Date. An earlier date may be designated by Purchaser by
giving Seller at least five (5) days advance written notice. The closing shall
be held at 10:00 a.m. at the offices of the attorney for Seller, or at such
other time, date and location as is mutually agreeable to the parties.
12. CLOSING EVENTS. At the time and place of closing, the
parties shall cause to be delivered to one another or, if appropriate, execute
in favor of one another, the following documents:
By the Seller:
a. A warranty deed sufficient to pass fee
simple title, in the condition required
hereunder, to the Property to Purchaser.
b. A xxxx of sale sufficient to pass title, in
the condition required hereunder, to the
Personal Property to Purchaser.
c. An Assignment of the Leases, including all
amendments, guarantees, any other documents
included thereon, from Seller to Purchaser,
together with Seller's copies of all such
leases.
d. The schedule of tenant information certified
by Seller as being a true and correct
listing of all tenants by lot number, and
the rent, deposits, prepaid rent, or other
charges and any delinquent rent or other
charges.
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e. Assignment of the name "MANATEE RIVER GOLF
AND BOATING RESORT COMMUNITY" in such form
as Purchaser's attorney shall reasonably
require in order to transfer all of Seller's
right, title, and interest, if any, without
warranty, in and to such name to Purchaser.
f. Copies of all current ad valorem tax
statements (both for real property and
personal property).
g. A search, as of the Closing Date, of all
state and local records demonstrating the
absence of any security interests or liens
on any portions of the Personal Property,
which shall reasonably satisfy Purchaser
that title to the Personal Property is in
the condition required by this Agreement.
h. Certified copies of such documents as are
required by the Title Company to permit
transfer of the Property hereunder and cause
delivery of title insurance policy as
required herein issued, if necessary, by an
appropriate governmental agency or office
that will reasonably satisfy Title Company
and Purchaser's counsel as to Seller's
existence, good standing, authority to do
business and authority of the persons
executing documents.
i. Any affidavit or other document required
under the Tax Reform Act of 1986 and
Internal Revenue Code, Section 1445
(Non-Foreign Person Affidavit).
j. Copies or originals of all maintenance
records, warranties, or guarantees in
Seller's possession with respect to Park or
any property thereon.
k. An Assignment of the Service Contracts and
Development Contracts.
l. An assignment of Seller's rights to the
Park's business telephone number or numbers
in such form as may be required by the
company providing telephone service.
m. Seller shall execute and deliver to the
Purchaser, upon closing, for recording among
the public records of the county in which
the Property is located, an affidavit of the
type and form described in Section
723.072(1)(a) of the Florida Mobile Home Act
in a form acceptable to the Title Company.
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n. A Seller's affidavit in the form required by
the Title Company.
o. A closing statement.
p. A Certificate of Prospectus.
r. Such other documents as may be reasonably
required to close this transaction.
By the Purchaser:
a. A closing statement.
b. Such documents that will reasonably satisfy
Title Company and Seller's counsel as to
Purchaser's existence, good standing,
authority to do business and authority of
the persons executing documents.
c. Such other documents as may be reasonably
required to close this transaction.
13. COMMISSIONS. Seller and Purchaser represent to each other
that they have not dealt with any real estate broker in regard to the Park and
this transaction except for Horizon Real Estate & Investment Corporation. Each
party agrees to indemnify, defend and hold harmless the other party from and
against any real estate commission as a result of such representation by the
representing party being untrue. At closing, Purchaser agrees to pay a real
estate commission equal to Four Hundred Ninety Thousand Five Hundred and No/100
Dollars ($490,500.00). Purchaser and Seller acknowledge that Broker is
representing and acting on Purchaser's behalf.
14. SURVEY. Purchaser acknowledges that it has obtained a
survey of the Premises and agrees that it shall not be entitled to raise any
survey exceptions except as set forth in that certain letter dated November 3,
1998, from Xxxx Xxxxxx Abercrombie addressed to Xxxx Xxxxxxxxx (the "Title and
Survey Letter").
15. CONVEYANCE OF TITLE. At the closing Seller shall execute
and deliver to Purchaser its warranty deed conveying good and marketable, fee
simple title to the Premises and the Improvements, subject only to the items set
forth in Title Commitment as subject to the Title and Survey Letter (the
"Permitted Exceptions"). In addition, at closing, Seller shall convey to
Purchaser good title to the Personal Property by means of a warranty xxxx of
sale which shall be subject only to the Permitted Exceptions, to the extent
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applicable. Purchaser acknowledges that it has obtained from Commonwealth Land
Title Insurance Company (the "Title Company"), evidence of Seller's title to the
Premises and the Improvements in the form of Commitment No. SA437017, effective
date July 27, 1998, for a policy of title insurance in the amount of the
Purchase Price (the "Title Commitment") together with true and correct copies of
any instruments for which exception is made in the Commitment. Purchaser agrees
that it shall not raise any objections to the title except as set forth in the
Title and Survey Letter.
Seller shall have fourteen (14) days from the Effective Date (the
"Curative Period") to use reasonable efforts to resolve with Purchaser all
matters set forth in the Title and Survey Letter. In the event Seller is not
able to resolve all matters set forth in the Title and Survey Letter with
Purchaser within the Curative Period, the Purchaser shall then have the option
of either proceeding to Closing and accepting the title as it then is or
demanding a refund of the deposit(s) paid hereunder, which shall immediately be
returned to Purchaser, and following which Purchaser and Seller shall be
released of all further obligations under this Agreement. The Purchaser shall
notify the Seller of its decision to terminate this Agreement or purchase the
Premises subject to and matters outstanding under the Title and Survey Letter
within two (2) business days following the end of the Curative Period.
Any liens or encumbrances, other than ad valorem taxes and other
governmental assessments for 1998 and subsequent years shall be paid in full by
Seller at or prior to closing.
16. POSSESSION. Seller agrees to deliver possession of the
Property to Purchaser at closing, subject only to the rights of persons in
possession under the Leases and the rights of parties under the Permitted
Exceptions.
17. LEASE-BACK OF OFFICE. After Closing, Purchaser shall lease
back to Seller the space used by Moorings Development and Marketing Corporation,
a Florida corporation, as an office in the administration building/sales center.
The term shall be for three months at a rental of $1,000 per month plus sales
tax. Seller shall have no obligation for any utilities, maintenance, or other
expenses except for its own telephone or other communications services.
18. RISK OF LOSS. In the event that all or a material portion
of the Property shall be damaged or destroyed on or prior to the date of
closing, the following provision shall apply:
a. In the event that any damage or destruction
is of a minor nature (less than Thirty
Thousand and no/100 Dollars [$30,000.00]),
Seller shall repair, restore and replace the
damage or destruction as promptly as
possible in good and workmanlike manner,
regardless of whether or not there is
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insurance to compensate Seller for the cost,
pursuant to plans which are delivered to,
and approved by, Purchaser in advance, which
approval shall not be unreasonably withheld.
If the repairs or replacements cannot be
completed by the date of closing, the cost
of completing the work, as certified by a
licensed general contractor selected by
Seller, and acceptable to Purchaser, shall
be paid by Seller to Purchaser at closing,
and Purchaser shall be responsible for
completing the work.
b. In the event that any major damage or
destruction (Thirty Thousand and no/100
Dollars [$30,000.00] or more), occurs, then:
i. If the damage or destruction is
covered by insurance and repairs or
replacements can be completed prior
to closing, Seller shall make such
repairs or replacements pursuant to
plans which are delivered to, and
approved by, Purchaser in advance,
which approval shall not be
unreasonably withheld. If they
cannot be completed by closing,
Purchaser shall have the option,
upon giving written notice to
Seller, to either terminate this
Agreement, or to close this
transaction, accept the damage or
destruction, and receive all of the
proceeds of Seller's insurance
coverage.
ii. If the damage or destruction is not
covered by insurance, Purchaser
shall have the option, upon giving
written notice to Seller, of either
terminating this Agreement or
closing the transaction and
accepting the damage or destruction.
If Seller elects or is required to
make any repairs or replacements
pursuant to this paragraph, Seller
shall cause the work to be done in
good workmanlike manner.
19. CARE AND MAINTENANCE OF PROPERTY. From the date of this
Agreement until the date of closing, Seller:
a. shall maintain and repair the Property in a
careful and prudent manner, the same as it
has maintained same during its ownership
thereof in the normal and ordinary course of
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business, and will carry on its business
activities in connection with the Property
diligently and in substantially the same
manner as such activities have previously
been carried out by Seller and Seller shall
not make or institute any unusual or novel
methods of operation that vary materially
from those used by Seller as of the date of
this Agreement;
b. will pay all obligations arising from the
Property, as payment becomes due;
c. Seller will not permit or suffer any
mechanics', materialmen's or other similar
lien, claim, or notice of an intention to
file same, to be filed or claimed against
the Property by reason of any work, labor,
materials, services or supplies furnished or
purportedly furnished to or for the Seller
in connection with the Property from and
after the date hereof until Closing.
Notwithstanding the foregoing, if any such
mechanics' or materialmen's liens should be
filed and/or claimed against or encumber the
Property as a result of the activities on
the Property prior to the Closing giving
rise to such liens or claims, Seller shall
bond off such liens or claims prior to
Closing.
20. EMINENT DOMAIN. If, prior to Closing, the entire Property
is taken by eminent domain or if proceedings are commenced for such taking, this
Agreement shall be deemed canceled. If less than all of the Property is so taken
or if proceedings are commenced for such taking, Purchaser shall have the option
of (a) proceeding with closing and acquiring the Property as affected by such
taking, together with all compensation and damages awarded or the right to
receive same, or (b) canceling this Agreement. If Purchaser elects option (a)
above, Seller agrees to assign to Purchaser at closing its rights to such
compensation and damages, and will not settle any proceedings relating to such
taking without Purchaser's prior written consent. Seller shall promptly notify
Purchaser of an actual or threatened condemnation affecting the Property.
21. EXCHANGE. Purchaser understands and agrees that Seller
intends to exchange the Property in a deferred like-kind exchange of investment
properties, pursuant to the provisions of Section 1031, Internal Revenue Code.
In order to facilitate such exchanges, Purchaser agrees to reasonably cooperate
with Seller and to enter into transactions at the request or direction of Seller
in order to enable Seller to qualify this transaction for such like-kind
exchange treatment. It is provided, however, that:
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a. Any documents executed by the Purchaser at
the closing of any exchange transaction must
not create any personal liability for
Purchaser as to the Exchange Property.
b. The Purchaser shall not be required to, and
shall not incur any cost, expense, liability
or obligation in connection with or rising
out of such exchange. Seller agrees to pay
and to indemnify and hold the Purchaser
harmless from and against any such cost,
expense, liability or obligation incurred in
connection with any exchange.
22. HOMEOWNERS' ASSOCIATIONS/UNSOLICITED OFFER.
a. To the best of Seller's knowledge and
belief, there is a homeowners' association,
as such term is contemplated by Chapter 723
of the Florida Statutes, in existence at the
Park.
b. Seller represents that it has not made an
"offer" of the Park, as "offer" is defined
in Florida Statutes '723.071(3)(b). It has
not listed the Park for sale with a broker
and has not advertised it for sale in any
publication or by posting a notice on the
Premises. Purchaser represents that it
initiated the discussion of the sale of the
Park which led to the execution of this
Agreement. By reason of these facts, the
parties have concluded that '723.071(1) does
not apply to this sale and that '723.071(2)
does apply. However, Purchaser may require
that Seller (and Seller shall if required by
the Title Company) give notice to the
Association under '723.071(2), Florida
Statutes.
c. By reason of the set forth in (a) and (b)
above, the parties have concluded that
Seller is not under any obligation to sell
the Park to the homeowners or to interrupt
or delay negotiations with the Purchaser;
Seller is free at any time to execute this
Agreement for the sale of the Property it is
selling to the Purchaser.
d. Seller shall notify the homeowners'
association of this transaction in writing
within three (3) business days of the
effective date of this Agreement. The notice
shall be sent to all of the officers and
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directors of the associations and shall be
in form and content mutually agreeable to
Seller and Purchaser.
23. DEFAULT AND LIQUIDATED DAMAGES PROVISION. In the event of
a default by Seller hereunder, Purchaser may, at its option, elect to enforce
the terms hereof, or demand and be entitled to an immediate refund of its entire
xxxxxxx money deposit, together with any interest thereon, or Purchaser may
exercise any other right or remedy, in equity or in law, all of which rights and
remedies shall be cumulative. Seller agrees that Purchaser, among its remedies,
shall be entitled to specific performance of this Agreement. In the event of
default by Purchaser, Seller may declare a forfeiture hereunder and retain the
xxxxxxx money deposit, together with any interest thereon, as its sole remedy
and as agreed liquidated damages for keeping the Property off the market and for
loss of profits. This shall constitute Seller's only remedy, and Seller shall
have no further rights against Purchaser. However, if any party (including any
brokers executing this Agreement) are required to take any legal action to
enforce this Agreement, the prevailing party or parties shall be entitled to
recover reasonable attorneys fees from the other party or parties.
24. GOVERNING LAW AND AMENDMENT. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without regard to principles of conflicts of laws. No amendment or modification
of this Agreement shall be valid or enforceable unless confirmed in writing and
signed by each of the parties hereto.
25. BINDING EFFECT AND SURVIVAL. This Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
parties hereto. All of the terms and conditions of this Agreement shall survive
the Closing. Which party prepared this Agreement shall have no bearing on its
interpretation. There are no third parties that are beneficiaries of this
Agreement.
26. NOTICES. Any and all notices required to be delivered
hereunder shall be deemed properly delivered if (i) personally delivered, or
(ii) mailed by registered or certified mail, return receipt requested, or sent
by Federal Express or another express mail service to the following addresses,
or (iii) sent by facsimile to the following numbers with a copy mailed within
two (2) business days thereafter to the following numbers:
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If to Seller: The Moorings of Manatee, Inc.
c/o Xxxxx Xxxxxxx
000 Xxxxxxx Xxx
Xxxxxx XX 00000
Fax # (000) 000-0000
With copies to: Xxxx Xxxxxxxxx, Esquire
LIVINGSTON, PATTERSON, XXXXXXXXXX & XXXXXX, P.A.
00 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0
Xxxxxxxx XX 00000
Fax # (000) 000-0000
If to Purchaser: Community Acquisition & Development Corp.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx XX 00000
Att'n: Xxxxx X. Xxxxxx
Fax # (000) 000-0000
With copies to: Xxxxxx X. Xxxxxx, Esquire
Xxxxxx X. Xxxxxx, P.A.
0000 XxXxxxxxx Xxxxx
Xxxxxxxxxx XX 00000-0000
Fax # (000) 000-0000
If to Broker: Horizon Real Estate & Investment Corp.
0000 Xxxx Xxxxxx
Xxxxxxxx XX 00000
Fax # (000) 000-0000
Any party hereto may change the name and address or other information regarding
the designee to whom notice shall be sent by giving written notice of such
change to the other party hereto in the same manner as all other notices are
required to be delivered hereunder.
27. TIME. Time is of the essence of this Agreement. However,
if a date for the performance of an obligation falls on a Saturday, Sunday or
legal holiday, the date for performance shall be extended to the next business
day that is not a Saturday, Sunday or legal holiday.
28. EFFECTIVE DATE. The Effective Date shall be the date all
parties have executed this Agreement.
29. CONFIDENTIALITY. Purchaser shall maintain in strict
confidence all information obtained from Seller. These matters shall only be
disclosed to Purchaser's officers, directors, lenders and professional advisors,
all of whom shall be instructed of the confidential nature of the information.
Additionally, Purchaser shall not make any public announcements regarding the
sale, without Seller's, prior to the Effective Date, prior written consent.
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30. ATTORNEYS' FEES AND VENUE. In addition to any remedies
provided by law, the prevailing party (which term shall include the broker) in
any action to enforce this Agreement shall be entitled to recover all costs and
expenses, including reasonable attorney's fees, from the other party. Venue for
any litigation arising hereunder shall be in Hillsborough County, Florida.
31. RADON DISCLOSURE. Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from your county public health unit.
32. ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties and supersedes all negotiations, tentative agreements,
representations, commitments, or arrangements made prior to the date hereof. All
prior agreements are merged into this Agreement, and all representations and
warranties, whether oral or written, are hereby disclaimed and disavowed unless
expressly contained herein.
33. COUNTERPARTS. This Agreement and any amendments to it may
be executed in multiple copies, each of which shall for all purposes constitute
one agreement, binding upon the parties. Each party shall send to all other
parties by facsimile transmission a copy of the page of the Agreement with their
signature within one business day from the date of execution.
34. CROSSDEFAULT. A default by a part to this Agreement shall
be a default by that party under the Agreement for Assignment of Contracts and
Covenant Not to Compete, and vice-versa.
IN WITNESS WHEREOF the parties hereto have executed this Agreement of
Sale on the dates set forth below.
WITNESSES: SELLER
THE MOORINGS OF MANATEE, INC.,
a Florida corporation
/s/ Xxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------ -----------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxxxxx Its President
------------------------ Seller's Taxpayer I.D. Number:
00-0000000
Signed on November 20, 1998
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WITNESSES: PURCHASER
COMMUNITY ACQUISITION &
DEVELOPMENT CORP., a
Delaware corporation
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------ --------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx Its President
------------------------ Purchaser's Taxpayer I.D.
Number: 00-0000000
Signed on November 17, 1998
JOINDER
The undersigned real estate broker joins in this Agreement as a party
and agrees to comply with all terms pertaining to it.
HORIZON REAL ESTATE & INVESTMENT
CORPORATION
By: /s/ N. J. Xxxxxxxx
--------------------------
N. J. Xxxxxxxx
Its President
w:\moorings\xxxxxx\asset\31000AB.10
11-16-98
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