EXHIBIT 6.5
AGREEMENT OF PURCHASE AND-SALE
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THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made this ______ day
of _________________, 1997, by and among:
SELLER: H.G.G.S. Associates, a Florida partnership
▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
PURCHASER: ▇▇▇▇▇▇▇ Preservation, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ #▇▇▇*
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
*or other lot number as designated
by Association
ESCROW AGENT: ▇▇▇▇▇ ▇▇▇▇, Esq.
Skelding, Labasky, et al., P.A.
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In consideration of the mutual covenants and promises contained herein,
Seller and Purchaser agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
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Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, the following described property (herein
collectively called the "Property"):
A. Real Property. That certain tract of Real Property (the "Real
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Property") located at the northwest corner of PGA Boulevard and Prosperity Farms
Road in Palm Beach County, Florida, consisting of 55 acres zoned RMH in the City
of Palm Beach Gardens, operating as the ▇▇▇▇▇▇▇ Mobile Home Park Development,
being more particularly described on Exhibit "A", attached hereto and
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incorporated herein by reference, together with all improvements, including, but
not limited to, 381 zoned, licensed, permitted mobile home rental spaces, all of
which are developed with full utility services and fully rentable.
B. Easements. All easements, if any, benefitting the Real Property.
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C. Rights and Appurtenances. All rights and appurtenances pertaining
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to the foregoing, if any, including any right, title and interest of Seller, if
any, in and to adjacent streets, alleys or rights of way.
D. Improvements. All improvements (the "Improvements") in and on the
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Real Property.
E. Tangible Personal Property. All of Seller's right, title and
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interest in all appliances, fixtures, equipment, vehicles, inventory from sales
operations, machinery, furniture, carpet, drapes and other personal property, if
any, located on or about the Real Property and the Improvements or used in the
operation and maintenance thereof (the "Tangible Personal Property"). A schedule
of the Tangible Personal Property proposed by Seller is set forth in Exhibit "C"
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attached hereto and made a part hereof. Purchaser shall accept or reject said
schedule during the Inspection Period (hereinafter defined). Seller currently
owns five (5) mobile homes which are excluded from this transaction; Seller
shall continue to pay rent after Closing on the five (5) spaces occupied by
Seller's mobile homes.
F. Intangible Property. All of Seller's right, title and interest in
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the following intangible property (the "Intangible Property"): business
telephone numbers, the Park name, "The ▇▇▇▇▇▇▇ Mobile Home Park Development,"
logos and similar items, leases, rental agreements, prepaid rents and
maintenance fees, marketing information, deposits, contract rights, permits and
licenses, pertaining to the Real Property, the Improvements, or the Tangible
Personal Property or the use thereof.
2. Purchase Price. Seller agrees to sell and convey, and Purchaser agrees
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to purchase the Property for a total consideration of TWELVE MILLION DOLLARS
($12,000,000.00) payable as follows:
▇. ▇▇▇▇▇▇▇ Money. The Purchaser agrees to deposit with Escrow Agent
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(hereinafter defined), within three (3) business days after the Effective Date,
(hereinafter defined) the sum of THREE HUNDRED FIFTY THOUSAND DOLLARS
($350,000.00) in cash ("▇▇▇▇▇▇▇ Money"). The ▇▇▇▇▇▇▇ Money shall be held in an
interest bearing account by ▇▇▇▇▇ ▇▇▇▇, Esq., Skelding, Labasky, et al., P.A.
("Escrow Agent") in a fully insured financial institution, with interest to
accrue to Seller in the event of Purchaser's default. If the sale of the
Property is consummated pursuant to the terms of this Agreement, the accrued
interest on the ▇▇▇▇▇▇▇ Money shall belong to the Purchaser. If Purchaser
terminates this Agreement in accordance with any right to terminate that
Purchaser is granted by the terms of this Agreement, the ▇▇▇▇▇▇▇ Money and
accrued interest thereon shall be immediately returned to Purchaser, and no
party hereto shall have any further obligations under this Agreement.
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B. Balance of Purchase Price. The balance of the Purchase Price,
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subject to the provisions and adjustments permitted or required by this
Agreement against the cash portion of the Purchase Price, shall be paid as
follows:
(1) The sum of Two Hundred Thousand Dollars ($200,000.00) by confirmed
wire transfer at Closing from the Escrow Agent. The balance of the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser at Closing.
(2) Execution and delivery of a non-recourse promissory note in an amount
equal to the balance of the Purchase Price after all adjustments and
prorations (the "Note"), secured by an irrevocable standby letter of
credit due and payable on January 6, 1998 (the "Letter of Credit") to
be issued by Capital City Bank, Tallahassee, Florida (the "Bank") upon
receipt of a confirmed wire transfer of said funds from Purchaser. All
interest or earnings of any nature on the funds deposited with the
Bank shall accrue solely to the benefit of Seller, and shall be paid
to Seller with the proceeds of the Letter of Credit on January 6,
1998. Purchaser shall pay all costs and fees charged by the Bank for
its services, which shall not exceed $2,500. Any Bank costs and fees
in excess of $2,500 shall be paid by Seller. The sole security and the
sole source of payment for the Note shall be the Letter of Credit, or
the proceeds thereof, and Seller shall not look to Purchaser, the
Property or any other source for payment. Purchaser shall have fully
performed its obligations under this Agreement, and shall have no
liability to the Bank or to Seller under the Note, the Letter of
Credit, and any agreement and/or instruments relating thereto, once
the funds securing the Letter of Credit have been deposited with the
Bank. Seller shall execute such waivers as may be required by the
title insurer of all legal and/or equitable claims to the Property for
repayment of the Note, including, without limitation, any claim of a
vendor's lien. The Note shall be non-interest bearing and shall mature
and become due and payable on January 6, 1998. The Note shall be paid
solely by the execution and delivery to Seller of the Letter of Credit
or delivery of the proceeds thereof, on January 6, 1998, by Bank; and
upon such delivery, the Note shall be deemed paid in full, satisfied,
canceled and returned to Purchaser. Seller agrees that Purchaser shall
have no liability to Seller in the event the Bank defaults under the
Letter of Credit. Seller shall further execute such waivers, estoppels
or other instruments as Purchaser's lender may require.
The ▇▇▇▇▇▇▇ Money and all interest thereon, all adjustments,
prorations and other credits, if any, shall be credited against the
cash portion of the Purchase Price at Closing with the remaining
▇▇▇▇▇▇▇ Money being returned to Purchaser at Closing.
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3. Closing.
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A. Date and Time of Closing. The closing, payment of the purchase
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price and conveyance of title (the "Closing") shall be held five (5) calendar
days after the expiration of the Inspection Period (hereinafter defined) at a
place to be mutually agreed upon (the "Closing" or "Closing Date"), unless the
parties mutually agree upon another time or date.
B. At or prior to the Closing, Purchaser shall deliver the
following:
(1) The Purchase Price by confirmed wire transfer as set forth
in Paragraph 2(B), less Purchaser's ▇▇▇▇▇▇▇ Money and accrued interest, less
adjustments and prorations to Purchaser.
(2) Such consents and authorizations as reasonably necessary to
evidence authorization of Purchaser for the purchase of the Property, the
execution and delivery of any documents required in connection with Closing,
documentation necessary for the consummation of any Section 1031 Exchange
(subject to the limitations set forth in Paragraph 31) and the taking of all
action to be taken by the Purchaser in connection with Closing.
C. At or prior to the Closing, Seller shall deliver the following:
(1) An executed Statutory Warranty Deed warranting good and
marketable fee simple title to the Real Property to Purchaser subject only to
the Permitted Exceptions.
(2) "Marked down" title commitment updated through the Closing
Date deleting the "gap" exception from Schedule B-II and all other exceptions
except for the Permitted Exceptions (hereinafter defined) (owners policy to be
delivered "post closing" at Seller's expense).
(3) An executed Warranty ▇▇▇▇ of Sale and Assignment conveying
the Tangible Personal Property to Purchaser and such assignments as may be
necessary to convey Seller's interest in the Intangible Property.
(4) Assignment of all Intangible Property including. without
limitation, all permits, licenses, warranties regarding the Property and the
books and records pertaining to the planning, development, construction and
operation of the Property; and the originals of the foregoing.
(5) An affidavit as required by (S)723.072, Florida Statutes,
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showing Seller's compliance with (S)723.071, Florida Statutes.
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(6) Tenant Deposits held by Seller as of the Closing Date.
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(7) A certified and current rent roll, including identification
of tenants by name and lot number, the current monthly rent, the lease and
prospectus applicable to each lot, the identification of tenant deposits, and
both prepaid and delinquent rents, certified as accurate by Seller as of the
Closing Date.
(8) An Assignment of all Leases and Rental Agreements for the
Property, together with the original instruments for each lease or rental
agreement. Additionally, Seller shall assign, to the extent assignable, all
permits, licenses, warranties, promotional materials, contracts (if Purchaser
elects to assume obligation), Park Name, logos, phone numbers and similar items
used in the operation of the Property.
(9) An affidavit stating that no work has been performed on the
Property that would entitle any person or entity to record a mechanic's or
materialman's lien against the Property, except persons or entities that have
been fully paid and have released all claims; that Seller has sole possession of
the Property, except for tenants and guests under unrecorded leases,
reservations or rental agreements; that there are no unrecorded easements; and
other matters reasonably required by the title insurer.
(10) An affidavit in accordance with IRS Code 1445 certifying
that Seller is not a foreign person subject to the withholding rules of the
Foreign Investment in Real Property Act.
(11) The originals of all disclosed contracts pertaining to the
Property, including, but not limited to, leases, deposits, rental agreements and
other disclosed agreements between Seller and its tenants and service contracts
that will be assumed by Purchaser, which are attached as Exhibit "D" and made a
part hereof (collectively the "Assumed Contracts"). All Assumed Contracts shall
be assigned at Closing. Seller shall indemnify Purchaser from all loss, cost or
expense in connection with all the claims, demands, actions or causes of action
asserted against Purchaser or the Property (the "Claims") arising out of the
Assumed Contracts prior to Closing, and for claims arising out of any contracts
not assumed by Purchaser both prior to and subsequent to Closing. Purchaser
shall indemnify Seller from all loss, cost or expense in connection with any
Claims arising out of the Assumed Contracts subsequent to the Closing.
(12) A closing statement setting forth the allocation of closing
costs, purchase proceeds, etc.
(13) Certificates of title to vehicle(s), if any.
(14) Such consents and authorizations as reasonably necessary to
evidence Seller's authority to sell the Property, including, without limitation,
an affidavit as required by Section 620.605, Florida Statutes, and such
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documentation as title insurer may require to ensure good and marketable title
to the Property passing to Purchaser; the execution and delivery of any
documents required in connection with the Closing; documentation necessary for
the completion of any Section 1031 Exchange (subject to the
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limitations set forth in Paragraph 31); and the taking of all action necessary
to be taken by Seller in connection with the Closing.
D. Proration: Taxes. At Closing, prorations of income and expense
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and the apportionment of taxes 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, the following items. The prorations and credits shall be applied to
the cash due at Closing:
(1) All real estate and personal property taxes and assessments
based upon the discounted amount of the latest available bills. The parties
agree to reprorate the taxes at such time as the exact amount of such taxes for
1997 become known. The 1996 taxes shall be paid by Seller prior to closing.
(2) All rents (both earned and prepaid), other income, utilities
and all other operation expenses with respect to the Property, and real estate
and personal property taxes and other assessments with respect to the Property
for the year in which the Closing occurs, shall be prorated as of the date of
Closing. If the Closing shall occur before any rents from the Property have
actually been paid for the month in which the Closing occurs, only the rents
actually received by Seller will be prorated at Closing. That so long as any
tenant owing rent to Seller is fully current in his/her obligations to
Purchaser, then subsequent to the Closing, if any such rents owing to Seller are
actually received by Purchaser; immediately upon its receipt of such rents,
Purchaser shall pay to the Seller its proportionate share thereof for such
month. Purchaser shall pay over to Seller any such rents not apportioned at the
Closing received by Purchaser, for the benefit of Seller.
(3) All utility and/or service charges. Seller shall, where
practical, cause meters to be read and obtain final invoices through and
including the Date of Closing. Where this is not practical, the parties shall
assume equal per them use over the period of the billing, and adjustment shall
be made accordingly. Utility deposits, if any, shall be retained by Seller.
Purchaser shall replace any utility deposits or utility bonds outstanding with
regard to the utilities serving the Property.
(4) Any Assumed Contracts, including prepaid items or licenses
to the extent they are assumable (equipment leases, maintenance contracts, etc.)
(5) The agreements of Seller and Purchaser set forth in this
section 3(D) shall survive the Closing and shall not be merged in the Deed.
E. The parties agree that closing costs shall be paid as listed
below. Each party shall be responsible for payment of its respective attorneys'
fees.
Purchaser Seller
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Recording of Deed Seller's Broker's Commission (see (P)12)
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Costs of First Mortgage, if any Documentary Stamps on Deed
including intangible tax, Pending Special Assessment Liens, if any
documentary stamps & recording Title Insurance Commitment and
fees Title Insurance Policy with standard
endorsements and mortgagee policy
if desired by Purchaser
Purchaser's Broker's Commission Recording of any mortgage or lien
(see (P)12) satisfactions
Bank fees for issuance of Letter
of Credit not to exceed $2,500.00 Impact fees, if any
4. Contingencies. Purchaser's obligation to purchase the Property is
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contingent upon the following:
A. Inspection Period. Purchaser's right, for a period of fifteen
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(15) days after the Effective Date (hereinafter defined) (the "Inspection
Period"), to physically examine the Property and conduct reasonable
investigations with respect to the documentation set forth in Exhibit B attached
hereto and made a part hereof (the "Property Documentation"). The Property
Documentation will be made available for inspection and copying on the
"Effective Date" as defined herein, at the offices of The ▇▇▇▇▇▇▇ Mobile Home
Park on the Property. Seller shall make the Property Documentation available in
an orderly form, and shall make it available for copying. All expenses of the
inspection shall be paid by Purchaser. Seller agrees that Purchaser is permitted
to contact the last environmental and structural inspection companies used by
Seller to issue updated and recertified reports to Purchaser for Purchaser's use
and Seller shall cooperate with Purchaser to effectuate the issuance of these
reports (at no cost to Seller). Purchaser shall indemnify Seller from all loss,
cost or expense for any property damage, personal injury or death arising out of
or by reason of Purchaser's examination and investigation hereunder. If
Purchaser has not delivered, by facsimile or hand delivery, written notice to
Seller cancelling this transaction prior to 5:00 p.m. on the expiration date of
the Inspection Period, Purchaser shall be deemed to have approved the inspection
and to have waived all contingencies except those set forth in paragraph 7 and
shall proceed to Closing without further right to any cancellation or claim
against the ▇▇▇▇▇▇▇ Money; provided, however, this waiver shall be subject to
the title evidence contingency including the survey contingency, the conditions
of Closing set forth in paragraph 7 and the other provisions of this Agreement.
If Purchaser does cancel this transaction prior to 5:00 p.m. on the expiration
date of `the Inspection period, in its sole and arbitrary discretion, this
Agreement shall be null and void, and all ▇▇▇▇▇▇▇ Money, and accrued interest
thereon, shall be promptly returned.
That during the times between 9:30 a.m. and 5:00 p.m. on weekdays
only, from and after the Effective Date, herein defined, Seller shall afford
Purchaser and its representatives access to the Property, including, but not
limited to, the right to conduct Phase 1 environmental, soil, engineering and
other tests and to inspect the mechanical, plumbing and utility systems located
at the Property, together with all other aspects of the
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Property; provided, however, if Purchaser or its representatives enter upon the
Property pursuant to the terms hereof, Purchaser agrees to indemnify and hold
Seller harmless from all damage caused to any person or the Property as a result
of such entry and the negligent acts or omissions of Purchaser or its
representatives. Purchaser may not open up utility systems or conduct soil
borings without Seller's prior written approval. Seller's representative must
accompany Purchaser's inspectors during any inspections or testing. Seller
shall have the right to approve each consultant or inspector hired by Purchaser
for inspection of the Property.
Seller shall disclose to Purchaser's representatives, including
financial and legal advisors, provided the designated representatives are not
residents of The ▇▇▇▇▇▇▇ Mobile Home Park, and Purchaser's accountant (who shall
be licensed as a certified public accountant, and who shall have no family,
personal or business relationship or association with any resident of The
▇▇▇▇▇▇▇ Mobile Home Park) a current rent roll and a summary of expenses by major
categories of payroll, taxes, utilities, insurance, and maintenance for the
Property for 1995 and 1996. Purchaser shall have the further right, at
Purchaser's expense, to have an audit or further review by Purchaser's
accountant of the expenses of the Property for 1995, 1996 and 1997 to date. Such
financial disclosure shall be confidential and shall not be disclosed except to
Purchaser's lenders and financial and legal advisors. Purchaser's
representatives and Purchaser's accountant shall sign a confidentiality
agreement with Seller prior to receipt of any financial disclosure. Further,
Seller, if necessary, will furnish Purchaser's potential lenders with the same
information for the purpose of considering a loan to Purchaser, but the
potential lenders shall give Seller a confidentiality agreement prior to receipt
of any financial disclosure.
All information provided by Seller to Purchaser's representatives or
accountants shall remain strictly confidential and shall not be used for any
purpose other than to analyze Purchaser's prospective purchase of the Real
Property. Should Purchaser for any reason whatsoever elect not to proceed with
the closing of the sale and purchase of the Property, Purchaser shall give
written notice to Seller of such fact within the aforesaid period, whereupon
this Agreement shall terminate and the parties hereto shall have no further
obligations under this Agreement, and Purchaser shall return to Seller all
documents in its possession provided to Purchaser pursuant to this Agreement,
and Seller shall return all of Purchaser's ▇▇▇▇▇▇▇ Money Deposit to Purchaser.
Purchaser will furnish Seller with copies of any reports obtained by
Purchaser with respect to the physical condition of the Property or its
operation.
The provisions of this Paragraph 4 A. shall survive the Closing or
termination of this Agreement.
B. Title Evidence. Within ten (10) days of the Effective Date,
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Purchaser shall obtain a current ALTA owner's policy commitment for title
insurance, together with copies of all exception documents referred to therein.
The title commitment and owner's policy on ALTA Standard Form 1970 B Revised, to
be issued pursuant thereto, shall be
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paid for by Purchaser, shall be issued at the minimum promulgated rate, and
shall be in an amount equal to the Purchase Price. Purchaser shall receive a
credit against the Purchase Price at Closing in an amount equal to the cost of
the title search and the owner's policy, mortgagee policy, if required by
Purchaser, and such endorsements as Purchaser may reasonably require.
Purchaser shall have two (2) business days after receipt of Seller's
prior survey, the title commitment, and copies of all exception documents to
give written notice to Seller of any objections by Purchaser to the state of
title (including any matters shown on Seller's prior survey which are reasonably
unacceptable to Purchaser). Failure of Purchaser to deliver a written notice of
disapproval of the status of title to Seller within said 10-day period shall be
conclusive evidence that Purchaser has approved each and every matter contained
in the title commitment and shown on the Seller's prior survey, and that
Purchaser will accept title in that condition.
C. Permitted Exceptions. Seller shall convey and transfer to
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Purchaser at Closing, good and marketable fee simple title to the Property, free
and clear of all liens and encumbrances, except those that can be and are
discharged by the Seller at or before Closing, and the following, hereinafter
collectively referred to as the "Permitted Encumbrances:"
(1) Real Property Taxes for the year in which the sale and
purchase is closed, which shall be prorated as provided for elsewhere herein;
(2) Applicable Zoning and other regulatory laws and ordinances;
(3) Rights of tenants under disclosed unrecorded rental
agreements;
(4) Easements for provision of existing utilities services and
all other easements which benefit the Property and that are approved by
Purchaser; and
(5) The title exceptions listed in Schedule B of the title
commitment which Purchaser approves, or is deemed to have approved, pursuant to
this Paragraph 4.
D. Title Defects. After due notice of any title defect, Seller shall
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have the obligation to cure any defects that can, with reasonable diligence, be
cured on or before the Closing Date. As to any other defects, Seller shall have
the option to cure such defects within thirty (30) days after written notice.
Purchaser's consent shall be deemed to have been granted if Purchaser fails to
respond within ten (10) days after written notice from Seller of Seller's intent
to cure such "other" defects (and, if necessary, the closing shall be delayed
for that period). Should Seller either elect not to cure, or if Purchaser does
not give its consent to a cure by Seller, Purchaser shall have the option to:
(1) Terminate this Agreement, in which case Purchaser shall
notify Seller that Purchaser will not proceed with the purchase, whereupon this
Agreement shall
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terminate, Purchaser's ▇▇▇▇▇▇▇ Money shall be promptly refunded, and all parties
shall be released from any further obligations hereunder, or
(2) Proceed under this Agreement and accept title to the Real
Property subject to such defects, in which case the Closing shall take place on
the later of the date set for Closing as herein provided or on a date mutually
agreed upon by Seller and Purchaser and without reduction in the Purchase Price.
5. Survey. Purchaser may, at its expense, within twenty (20) days of the
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Effective Date, update any prior survey or obtain a new survey of the Real
Property in a form acceptable to the title insurer. The legal description of
the Real Property is described in Exhibit "A." Seller shall furnish Purchaser
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with surveys in its possession, if any. If the survey discloses lack of access,
a violation of deed restrictions, zoning regulations or covenants of this
Agreement, easements which are not approved by Purchaser, that any improvements
are not entirely on the Property, or other reasonable survey objections, the
same shall be treated as a title defect and treated as provided in Paragraph
4.D. Purchaser shall have two (2) business days from receipt of said survey to
deliver a written notice of disapproval of the status of title based upon
Purchaser's survey. Failure of Purchaser to deliver a written notice of
disapproval based upon Purchaser's survey within said fifteen business day
period shall be conclusive evidence that Purchaser has approved each and every
matter contained in Purchaser's survey and that Purchaser will accept title in
that condition.
6. Escrow Agent. The Escrow Agent shall be ▇▇▇▇▇ ▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇,
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Labasky, et al., P.A. All sums deposited with the Escrow Agent will be held in
an interest bearing trust account as the Good Faith Deposit for the transaction
described herein. The 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 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 deposit
the funds into the court registry and such deposit shall terminate Escrow
Agent's responsibility for the escrowed funds. The parties shall indemnify and
hold harmless the Escrow Agent from all liability hereunder, save for gross
negligence or intentional acts, and shall reimburse the Escrow Agent for all
court costs and attorneys' fees reasonably incurred by it, including attorneys'
fees on appeal in the event it is joined in any legal proceedings regarding this
Agreement.
7. Conditions to Purchaser's Obligation to Close. Purchaser's obligation
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to close this transaction is expressly conditioned upon the following, which, if
not satisfied or waived by Purchaser on or before the Closing Date, shall permit
Purchaser, to declare this Contract null and void and of no further force and
effect by written notice to Seller; whereupon the ▇▇▇▇▇▇▇ Money shall be
returned immediately to Purchaser, and neither the Seller nor the Purchaser
shall have any further obligations hereunder to the other.
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A. Seller shall have performed and complied with all of the covenants
and agreements herein contained which are to be performed prior to the Closing
Date; and,
B. Seller shall have delivered the "marked down" Commitment from the
title underwriter updated through the Closing Date in the full amount of the
Purchase Price subject only to the Permitted Exceptions and deleting the "gap"
exception from Schedule B-2; and,
C. The Property shall not have been materially affected by any
moratorium, legislative or regulatory change, or any flood, accident,
condemnation or other material adverse event.
D. All representations and warranties of Seller as set forth in
Paragraph 8 next below, shall be substantially true and correct.
E. Purchaser may at any time or times before closing waive any of the
foregoing conditions but only in writing signed by Purchaser and delivered to
Seller. In the event any of the conditions are not waived by Purchaser prior to
Closing Date, Purchaser my terminate this Contract and in such event Escrow
Agent shall promptly return all Deposit monies and the interest thereon to
Purchaser and, upon receipt of such refund, this Contract shall be null and void
and neither Purchaser or Seller shall have any further liabilities or
obligations hereunder.
8. Warranties and Representations. The parties agree that Seller has made
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no representations or warranties to Purchaser of any kind regarding the
financial or business status of the Property, other than as set forth in this
Agreement. Seller hereby represents and warrants to Purchaser that:
A. Seller has good, marketable and insurable title to the Real
Property, and the Real Property is free and clear of all liens, encumbrances,
restrictions, security interests, covenants, conditions and other matters in any
way affecting title to the Real Property, other than the Permitted Exceptions,
save for an existing first mortgage with an unpaid principal balance of
approximately $205,000.00 that will be satisfied at Closing.
B. Seller has no knowledge of any declarations, covenants or
restrictions of record which would prevent the continued use of the Property as
a 381-space mobile home park.
C. As of the date this Agreement is signed by Seller, there is no
pending or threatened condemnation or similar proceeding affecting the Real
Property, or any part thereof.
D. To Seller's knowledge, there are no actions, suits or other legal
or administrative proceedings, including bankruptcy proceedings, pending or
threatened,
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
________________
against or involving Seller or the Property which could affect the consummation
of the transactions contemplated hereby.
E. No goods or services have been contracted for or furnished to the
Real Property which will give rise to any mechanic's liens or other liens
affecting all or any part of the Real Property, except for ongoing maintenance
expense, which will be paid in full prior to or at Closing. Seller may contract
for repairs or services which could result in a lien but that Seller shall not
allow any such liens to attach to the Real Property and shall execute an
appropriate affidavit of no liens at Closing upon which Purchaser and the Title
Insurer may rely.
F. That except as shown on any surveys obtained pursuant to Paragraph
5, there are no encroachments on the Property and the Improvements which are
constructed on the Property do not encroach upon the land of others.
G. Seller has entered into no covenants, conditions, easements,
restrictions, agreements or encumbrances which would prohibit the operation of a
mobile home park on the Real Property defined in Paragraph 1.(A.) of this
Agreement, consisting of the Property as defined in Paragraph 1. (A.-F.) of this
Agreement.
H. There are no rental agreements which affect the Real Property
except as set forth in the Rent Roll identified in Exhibit "B" which has been
-----------
provided by Seller. There are no rental agreements in excess of 12 months and
no rental agreements affording discounted rents except as set forth in the Rent
Roll. The information contained therein is true and correct as of the Effective
Date; no rental agents, brokers or finders have any rights with regard to such
rental agreements, and there are no commissions payable in connection therewith;
no tenant has an option to purchase any part of the Property; and Seller is the
landlord under each such rental agreement and has the right to assign same to
Purchaser.
I. To the best of Sellers knowledge, Seller is in compliance with
Chapter 723, Florida Statutes and all regulations promulgated thereunder.
----------------
J. Water and sewer services are provided by the City of Palm Beach
Gardens, Florida ("City"), and all costs of design, construction and permitting
of water and sewer facilities and all connection fees have been paid. Seller is
current in its obligation to the City for water and sewer services.
K. The Tangible Personal Property is in good working condition, and
at the time of Closing will be in good working order; and the Tangible Personal
Property is free and clear of all liens and encumbrances, except as otherwise
provided in this Agreement.
L. Seller has the right to assign the name by which the Property is
commonly known and to use that name in the operation of the Property. Seller
represents to Purchaser that Seller has received no notice objecting to the use
of this name for Seller's
12
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________________
Park, but Seller otherwise makes no warranty or representation as to Purchaser's
ability to use or to continue to use this name.
M. The information contained in the Financial Statements identified
in Exhibit B hereto is true and correct in all material respects. Seller has
not been notified of any material increases in expenses that are not reflected
in such statements. Without limitating the generality of the foregoing
representations and warranties, Seller specifically warrants and represents that
the Financial Statements prepared by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Company, P.A., for fiscal
years 1993-1994, 1994-1995, and 1995-1996, and delivered to Purchaser are true
and correct in all materials respects. Seller further warrants and represents
that for the financial statements reflecting the fiscal year 1995-1996, no part
of the net operating income shown thereon is attributable to the approximately
89 unrented mobile home spaces on the Property.
N. To the best of Seller's knowledge, there are no existing or
continuing violations of any law, ordinance, rule, order, regulation, code or
requirement, including any requirement contained in any hazard insurance policy
covering the Property or any part thereof or of any board or fire underwriters
or other body exercising similar function, which are applicable to the Property
or to any part thereof or which are applicable to the use or manner of use,
occupancy, possession or operation of the Property, except as disclosed by those
documents provided by Seller pursuant to Paragraph 4 above.
O. To the best of Seller's knowledge, Seller has obtained and kept in
good standing all governmental permits, licenses and approvals necessary for the
operation of the Property, including, as applicable, all health permits,
Department of Environmental Protection permits and HRS permits, and Seller has
not received notice of any material violations thereunder.
P. The execution and delivery of this Contract and the consummation
of the transactions contemplated by this Contract have been duly and validly
authorized by all general partners of the Seller. This Contract has been duly
and validly executed and delivered by all general partners of Seller, or by such
general partner that has been authorized by the Seller to execute and deliver
this Contract and (assuming the valid execution and delivery of this Contract by
Purchaser) constitutes a legal, valid and binding agreement of Seller
enforceable against it in accordance with its terms.
Q. To the best of Seller's knowledge and except as disclosed by
documents delivered by Seller pursuant to Paragraph 4 above, the use of the
Property is consistent with the zoning uses authorized and permitted by the
ordinances of the City and County where the Property is located; and, except
those disclosed to Purchaser pursuant to Paragraph 4 there are no unpaid
assessments, impact fees or other development type charges pertaining to the
Property except those disclosed to Purchaser pursuant to Paragraph 4.
13
▇▇▇▇▇▇▇ Mobile Home Park
________________
R. Seller has not entered into any commitments or agreements with any
governmental authorities or agencies affecting the Property excepting those
disclosed by Purchaser pursuant to Paragraph 4 herein and Seller has received no
notices from any such governmental agencies and has no independent knowledge of
uncured violations at the Property of building, fire, air pollution or zoning
codes, rules, ordinances or regulations, environmental and hazardous substances
laws, or other rules, ordinances or regulations relating to the Property.
S. Neither the execution and delivery of this Agreement by Seller,
nor the consummation by Seller, of the transactions contemplated hereby will (i)
require Seller to file or register with, notify, or obtain any permit,
authorization, consent, or approval of, any governmental or regulatory
authority; (ii) conflict with or breach any provision of the Articles of
Incorporation or By-laws, or other corporate documents of Seller; (iii) violate
or breach any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, any note,
bond, mortgage, indenture, deed of trust, license, franchise, permit, lease,
contract, agreement or other indenture, deed of trust license, franchise,
permit, lease, contract, agreement or other instrument, commitment or obligation
to which Seller is a party, or by which Seller, the Property or any of Seller's
material assets may be bound; or (iv) violate any order, writ, injunction,
decree, judgment, statute, law or ruling of any court or governmental authority
applicable to Seller, the Property or any of Seller's material assets.
T. To the best of Sellers knowledge, neither this Contract nor any
Exhibit nor any written statement or transaction document furnished or to be
furnished by Seller to Purchaser in connection with the transactions
contemplated by this Agreement contains or will contain any untrue statement of
material fact or omits or will omit any material fact necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
U. Prior to the Closing, Seller will only enter into customary twelve
(12) month Rental Agreements. Seller will not enter into any amendment to or
modification of any of the Rental Agreements prior to the Closing, which will
reduce, forgive or postpone any rents or which would otherwise materially affect
the value of the Property, without Purchaser's consent, which will not be
unreasonably withheld. There are no commissions or other fees payable to any
person, entity or agent on the rentals collected or to be collected under the
Rental Agreements; save for a rental commission agreement with ▇▇▇▇▇ ▇▇▇▇▇▇
Associates, Inc. The rental commissions under said Agreement shall be payable
through Closing and the Agreement shall terminate at Closing and be of no
further effect.
V. No person, firm, corporation or other legal entity whatsoever has
any right, contract or option whatsoever to acquire the Property or any portion
or portions thereof or any interest or interests therein, except for the rights
of the tenants of the Property under Florida Statutes 723.071.
----------------
14
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________________
W. From the date of the Agreement to the Closing Date, Seller shall
conduct its business involving the Property in the ordinary course, and during
said period will:
(1) Refrain from transferring any of the Property or creating on
the Property any easements, liens, mortgages, encumbrances or other interest
that would affect the Property or Seller's abilities to comply with the terms of
this Agreement;
(2) Refrain from entering into any contracts or other commitments
with respect to the operation of the Property that extend more than 30 days
beyond the Closing Date, other than in the ordinary course of business with the
prior written consent of Purchaser, which will not be unreasonably withheld.
Rental agreements with prospective new residents of the Park entered into at the
prevailing rental rate and terms without concession are excluded from this
requirement;
(3) Continue to maintain and repair the Property in at least the
manner which Seller has previously maintained and repaired the Property, and
Seller will permit no wasting of the Property;
(4) Give Purchaser notice of all notices received by Seller of
violation of laws or municipal ordinances, regulations, orders or requirements
of departments of housing, building, fire, labor, health, or other state, city
or municipal departments or other governmental authorities having jurisdiction
against or affecting the Property or the use or operation thereof and either
comply with the notice or make adequate provision therefor.
(5) Keep in effect Seller's existing polices on public liability
and hazard and extended coverage insurance insuring the Property.
X. Seller specifically represents, covenants and warrants that, to
the best of its actual knowledge, the Property and the use and operation thereof
will comply with all state and federal environmental laws, rules and
regulations, including, without limitation, the Federal Resource Conservation
and Recovery Act and the Comprehensive Environmental Response Compensation and
Liability Act of 1980 and all amendments and supplements thereof and shall
continue to comply therewith at all times. Specifically, and without limiting
the generality of the foregoing, Seller represents, covenants and warrants that
Seller has not used the Property and that to the best of its actual knowledge,
the Property is not now being used for the handling, storage, transportation, or
disposal of hazardous or toxic materials, nor is Seller aware of any hazardous
substances used, stored or handled on land adjacent to the Property. Further,
Seller represents and warrants that Seller has never been cited or notified of
any violation of any state or federal environmental law, rule or regulations.
In the event that the representations and warranties contained herein prove to
be incorrect, Seller agrees to indemnify, defend, and hold Purchaser harmless
from and against any loss to Purchaser, for which Seller is directly liable,
including, without limitation, Attorneys' Fees (as hereinafter defined) and
costs of site investigation and cleanup, incurred by Purchaser, but excluding
consequential damages, as a result of Seller's handling, storage,
transportation, or disposal of hazardous
15
▇▇▇▇▇▇▇ Mobile Home Park
________________
or toxic materials during Seller's ownership of the Property. This provision
shall survive the closing of purchase and shall not be merged in the deed.
Y. The Property contains and is zoned, licensed and permitted to
contain and operate a mobile home park with 381 rentable mobile home spaces, of
which all 381 are fully rentable with full utility services. The Property
currently has 292 rental spaces rented and 89 rental spaces unrented.
Seller's foregoing representations and warranties shall survive the Closing and
shall not be merged in the deed for a period of one (1) year from the Closing.
9. Risk of Loss.
------------
A. Condemnation. If, prior to Closing, action is initiated to take
------------
any of the Property by eminent domain proceedings or by deed in lieu thereof
that exceeds five percent (5%) of the Real Property, Purchaser may either (a)
terminate this Agreement, or (b) consummate the Closing, in which latter event
the award of the condemning authority shall be assigned to Purchaser at Closing.
Notwithstanding the foregoing, if the taking of any of the Property is less than
5% of the Real Property, the award or the rights to the award of the condemning
authority shall be assigned to Purchaser at Closing.
B. Casualty. Seller assumes all risks and liability for damage to or
--------
injury occurring to the Property by fire, storm, accident, or any other casualty
or cause until the Closing has been consummated. If the Property, or any part
thereof, suffers any damage in excess of $50,000.00 prior to the Closing from
fire or other casualty which Seller, at its sole option, does not repair,
Purchaser may either: (a) terminate this Agreement, or (b) consummate the
Closing, in which latter event the proceeds of any insurance not exceeding the
Purchase Price and covering such damage shall be assigned to Purchaser at the
Closing. In such event, Seller shall credit Purchaser against the cash portion
of the purchase price an amount equal to the deductible under said insurance
coverage.
10. Possession. Seller agrees to deliver possession of the Property to
----------
Purchaser at Closing, subject only to the rights of tenants-in-possession under
disclosed rental agreements, Assumed Contracts and the Permitted Exceptions.
11. Default and Liquidated Damages. In the event of a default by either
------------------------------
Purchaser or Seller, the parties agree to the following:
A. In the event of a default by Seller, Purchaser may, at its option,
elect to demand and be entitled to an immediate refund of the ▇▇▇▇▇▇▇ Money,
together with any interest thereon, and Purchaser may pursue any remedies
available as a result of Seller's breach, including specific performance.
Notwithstanding any other provision of this Agreement, in the event Purchaser
loses the tax benefits of its (S) 1031 Exchange by reason of any act or omission
of Seller, then Purchaser, in addition to any other remedies it may have, may
seek consequential damages from Seller arising out of or in any way related to
16
▇▇▇▇▇▇▇ Mobile Home Park
________________
Purchaser's loss of tax benefits under its (S)1031 Exchange, in a sum not to
exceed $250,000.00.
B. If Purchaser breaches, defaults or fails to perform its
obligations under this Agreement and Seller has not breached, defaulted or
failed to perform any material obligations under this Agreement, then, as
Seller's sole and absolute remedy, to the exclusion of all other remedies
including, without limitation, specific performance, the ▇▇▇▇▇▇▇ Money shall be
paid to Seller, in which case the ▇▇▇▇▇▇▇ Money shall constitute the entire
liquidated damages of Seller and Purchaser shall thereupon be relieved of all
further obligations and liabilities arising out of this Agreement, it being
agreed that the actual damages of Seller are difficult or impossible to
ascertain and that said ▇▇▇▇▇▇▇ Money represents the parties' best estimate of
actual damages of Seller.
The provisions of this paragraph 11 shall survive Closing and shall not be
merged in the Deed.
12. Real Estate Commissions. Except as stated in this section, neither
-----------------------
Seller nor Purchaser has contacted any real estate broker, finder, or similar
person in connection with the transaction contemplated hereby and that neither
party is obligated to pay any brokerage fee or commission in connection with
this sale.
To the knowledge of Seller and of Purchaser, except for the real estate
brokers employed by Seller as set forth below, no Acquisition Fees (as
hereinafter defined) have been paid or are due and owing to any person or entity
by the Seller and the Purchaser. As used herein, "Acquisition Fees" shall mean
all fees paid to any person or entity in connection with the selection and
purchase of the Property, including real estate commissions, selection fees,
nonrecurring management and startup fees, conversion fees, development fees or
any other fee of similar nature. Seller and Purchaser each hereby agree to
indemnify and hold harmless the other from and against any and all claims for
Acquisition Fees or similar charges with respect to this transaction, arising
by, through or under the indemnifying party, and each further agrees to
indemnify and hold harmless the other from any loss or damage resulting from any
inaccuracy in the representations contained in this section. This
indemnification agreement of the parties shall survive the Closing.
Seller and Purchaser each represent that there is no broker involved
in the purchase and sale of the Property other than Lancore Realty, Inc. and
▇▇▇▇▇ ▇▇▇▇▇▇, Associates, Ltd. Lancore Realty, Inc., shall receive an
Acquisition Fee of $350,000. Seller shall pay $250,000 of said Acquisition Fee,
and Purchaser shall pay the balance of $100,000. In addition, ▇▇▇▇▇ ▇▇▇▇▇▇
Associates, Inc., as a Seller's broker, shall receive an Acquisition Fee of
$530,000, which Acquisition Fee shall be paid in its entirety by Seller. No
other broker, salesman, commission agent or other person (collectively "Broker")
has participated in the negotiations for and procurement of this Agreement. If
this transaction fails to close for any reason, then no Acquisition Fees shall
be owing to Broker.
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
________________
13. Governing Law and Amendment. This Agreement shall be governed by and
---------------------------
construed in accordance with the laws of the State of Florida. No amendment or
modification of this Agreement shall be valid or enforceable unless confirmed in
writing and signed by each of the parties hereto.
14. Binding Effect. This Agreement shall inure to the benefit of and
--------------
shall be binding upon the successors and assigns of the parties hereto.
15. Entire Agreement. This Agreement embodies the entire agreement between
----------------
the parties relative to the subject matter hereof, and there are no oral or
written agreements between the parties, nor any representations made by either
party relative to the subject matter hereof, which are not expressly set forth
herein. The parties further agree that, upon the full execution of this
Agreement by Seller and Purchaser, the Letter of Intent between the parties
dated July 8, 1997, shall be superseded in its entirety by this Agreement and
shall be of no further effect.
16. Amendment. This Agreement may be amended only by a written instrument
---------
executed by the party or parties to be bound thereby.
17. Headings. The captions and headings used in this agreement are for
--------
convenience only and do not in any way limit, amplify or otherwise modify the
provisions of this Agreement.
18. Construction. All of the provisions of this agreement shall not be
------------
more strictly construed against any one of the parties hereto in that both
parties have made substantial contributions to the negotiation and drafting of
this Agreement.
19. Binding Effect; No Assignment. This Agreement shall bind and inure to
-----------------------------
the benefit of Seller and Purchaser and their respective heirs, executors,
administrators. personal and legal representatives, successors and
successors-in-interest. Purchaser may not assign Purchaser's rights under this
Agreement.
20. Invalid Provision. If any provision of this agreement is held to be
-----------------
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this agreement shall remain in full force and effect and shall not be affected
by such illegal, invalid or unenforceable provision or by its severance from
this Agreement.
21. Attorneys' Fees. In the event it becomes necessary for either party
---------------
hereto to file suit to enforce this Agreement or any provision contained herein,
the party prevailing in such suit shall be entitled to recover, in addition to
all other remedies or damages, as provided herein, reasonable attorneys' fees,
paralegal fees and costs incurred in such suit at trial, appellate, bankruptcy
and/or administrative proceedings.
18
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22. Multiple Counterparts. This Agreement may be executed in a number of
---------------------
identical counterparts which, taken together, shall constitute collectively but
one (1) agreement; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart executed by
the party to be charged.
23. Effective Date. This Agreement shall not be effective unless signed by
--------------
both Purchaser and Seller, and, as used in this Agreement, the terms "date of
this Agreement" or "date hereof" shall mean and refer to the date of execution
of the last of Purchaser and Seller to execute this Agreement (the "Effective
Date").
24. Exhibits. The following exhibits are attached to this agreement and
--------
are incorporated into this Agreement and made a part hereof:
A. Exhibit "A." Description of the Real Property.
------------
B. Exhibit "B." Property Documentation.
------------
C. Exhibit "C." Schedule of Tangible Personal Property.
------------
D. Exhibit "D." Assumed Contracts.
------------
25. Authority. Each party hereto represents and warrants to the other that
---------
the execution of this Agreement is within the power of the respective parties
and has been duly authorized by all necessary partnership or corporate actions;
and any other documents required or necessary to be executed pursuant to the
provisions hereof are valid, binding obligations and are enforceable in
accordance with their terms.
26. Notices. All notices provided for herein will be in writing and sent
-------
by telefax, registered or certified mail to the following addresses:
The Seller: H.G.G.S. Associates, a Florida partnership
▇▇▇▇ ▇.▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With Copy to:
The Purchaser: ▇▇▇▇▇▇▇ Preservation, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ #▇▇▇*
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
19
▇▇▇▇▇▇▇ Mobile Home Park
________________
*or other lot number as designated by Purchaser
With Copy to:
The Escrow Agent: ▇▇▇▇▇ ▇▇▇▇, Esq.
Skelding, Labasky, et al., P.A.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as is designated from time to time in writing by those
entitled to receive notice. Telefax notice is effective on the date of
transmission, so long as a certified or registered mailing is forwarded to the
party being noticed on the same day as the telefax transmission. Notice by mail
shall be effective as of the date of mailing.
27. Liability and Indemnification.
-----------------------------
A. Purchaser does not and shall not assume any liability for any
claims arising out of any occurrence prior to the Closing Date with respect to
the Property.
B. From and after the Closing Date, Seller agrees to indemnify and
hold harmless Purchaser, and Purchaser's successors and assigns, from and
against any and all claims, penalties, damages, liabilities, actions, causes of
action, costs and expenses (including attorneys' fees), arising out of, as a
result of or as a consequence of: (i) any property damage or injuries to
persons, including death, caused by any occurrence at the Project or in
connection with the Seller's use, possession, operation, repair and maintenance
of the Project prior to the Closing Date; and (ii) any breach by Seller of any
of its representations, warranties, or obligations set forth herein or in any
other document or instrument delivered by Seller in connection with the
consummation of the transactions contemplated herein. In such event, Seller
shall be promptly notified by Purchaser and shall have the right and duty to
defend such claims against Purchaser.
C. From and after the Closing Date, Purchaser agrees to indemnify and
hold harmless Seller, and Seller's successors and assigns, from and against any
and all claims, penalties, damages, liabilities, actions, causes of action,
costs and expenses (including attorneys' fees), arising out of, or as a
consequence of any property damage or injuries to persons, including death,
caused by any occurrence at the Property after the Closing Date or in connection
with the Purchaser's use, possession, operation, repair and maintenance
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
________________
of the Property after the Closing Date. In such event, Purchaser shall be
promptly notified by Seller and shall have the right and duty to defend such
claims brought against Seller.
The provisions of this paragraph shall survive Closing and shall not be
merged into the Deed.
28. Third Parties. This Agreement shall not be deemed to confer in favor
-------------
of any third parties any rights whatsoever as third-party beneficiaries, the
parties hereto intending by the provisions hereof to confer no such benefits or
status.
29. Termination of Offer. The offer must be executed by all parties no
--------------------
later than November 17, 1997, at 5:00 p.m. Eastern Standard Time. If not fully
executed prior to said time, then this offer shall automatically terminate.
30. Agreement to Survive Closing. Any provision which by its nature or
----------------------------
effect is required to be performed, or which may be performed, or which may be
breached after delivery of the deed, shall survive said delivery of deed except
as otherwise expressly provided by this Contract. The time limitations
applicable to Seller's Representations and Warranties set forth in Paragraph 8
above, shall not be applicable to other survival provisions set forth in this
Agreement nor to those warranties expressly set forth on the Warranty Deed, ▇▇▇▇
of Sale or any other conveyancing document executed and delivered by Seller to
Purchaser.
31. Like-Kind Exchange (Section 1031, IRC). Seller and Purchaser agree to
--------------------------------------
the following regarding possible Exchanges pursuant to (S)1031 of the Internal
Revenue Code:
A. Seller may consummate the sale of the Property as part of a so-
called like kind exchange (the "Exchange") pursuant to (S)1031 of the Internal
Revenue Code of 1986, as amended (the "Code"), provided that:
(i) The Closing shall not be delayed of affected by reason of
the Exchange nor shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to Seller's obligations under the
agreement of sale:
(ii) Seller shall affect the Exchange through an assignment of
rights under the agreement of sale to a qualified intermediary;
(iii) Purchaser shall not incur any costs or expenses in
connection with the Exchange; and
(iv) Purchaser shall not be required to take an assignment of
the purchase agreement for the replacement property or to required to acquire or
hold title to
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________________
any real property for purposes of consummating the Exchange. Purchaser shall not
by the agreement of sale or acquiescence to the Exchange: (a) have its rights
under the agreement of sale affected or diminished in any manner, or (b) be
responsible for compliance with or deemed to have warranted to Seller that the
Exchange in fact complies with (S)1031 of the Code.
B. Purchaser may consummate the sale of the Property as part of a so-
called like kind exchange (the "Exchange") pursuant to (S)1031 of the Internal
Revenue Code of 1986, as amended (the "Code"), provided that:
(i) The Closing shall not be delayed of affected by reason of
the Exchange nor shall the consummation or accomplishment of the Exchange be a
condition precedent or condition subsequent to Purchaser's obligations under the
agreement of sale;
(ii) Purchaser shall affect the Exchange through an assignment
of rights under the agreement of sale to a qualified intermediary;
(iii) Seller shall not incur any costs or expenses in
connection with the Exchange; and
(iv) Seller shall not be required to take an assignment of the
purchase agreement for the replacement property or to required to acquire or
hold title to any real property for purposes of consummating the Exchange.
Seller shall not by the agreement of sale or acquiescence to the Exchange: (a)
have its rights under the agreement of sale affected or diminished in any
manner, or (b) be responsible for compliance with or deemed to have warranted to
Purchaser that the Exchange in fact complies with (S)1031 of the Code.
32. 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 building in Florida.
Additional information regarding radon and radon testing may be obtained from
your County Public Health Unit.
33. Further Assurances. In the event of clerical error or oversight, and
------------------
in the event that not all documents have been fully or properly executed or
obtained, each party agrees to give to the other such further assurances and
execute such further documents as necessary to fully and completely effect the
transfer of the Property to Purchaser under this Agreement and execute such
other instruments as may be necessary to effectuate the terms of this Agreement.
22
▇▇▇▇▇▇▇ Mobile Home Park
________________
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by persons empowered to bind the parties to perform their
respective obligations hereunder the date and year set forth beside their
respective signatures.
[SIGNATURES SET FORTH ON FOLLOWING PAGES]
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
________________
WITNESSES as to Seller: SELLER:
H.G.G.S. ASSOCIATES, a Florida partnership
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇, Managing General
________________________________
Print Name: Partner, on behalf of the Partnership
_____________________
/s/
________________________________
Print Name: Dated: 11-28 , 1997.
_____________________ ---------------------
WITNESSES as to Purchaser PURCHASER:
▇▇▇▇▇▇▇ PRESERVATION, INC., a
Florida corporation not for profit
/s/ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
Print Name: Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________ --------------------------
Title: President
-------------------------------
/s/
--------------------------------
Print Name: Dated: 11-25
_____________________ -----------------------, 1997
24
▇▇▇▇▇▇▇ Mobile Home Park
________________
ESCROW AGENT
------------
I hereby acknowledge receipt of $350,000.00 ▇▇▇▇▇▇▇ Money Deposit by check from
Purchaser on this 28th day of November, 1997, and agree to perform the
---- --------
obligations of Escrow Agent as set forth above.
Skelding, Labasky, et al., P.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇, Esq.
As Its:
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
__________________
EXHIBIT "A"
-----------
DESCRIPTION OF REAL PROPERTY
----------------------------
The ▇▇▇▇▇▇▇ Mobile Home Park Development
Legal Description
-----------------
From the center of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 43 East, Palm Beach
County, Florida; thence North 0 degrees 30'10" East along the North-South
Quarter line of the said Section 5 a distance of 275 feet to the Point of
Beginning; thence continue North 0 degrees 30'10" East along the said North-
South Quarter line a distance of 1,050.85 feet to a point; thence South 89
degrees 51'42" East a distance of 1,323.60 feet to point; thence South 0 degrees
47'20" West a distance of 1,252.40 feet to a point in the Northerly right-of-way
line of PGA Boulevard, as now laid out and in use; thence South 89 degrees
07'28" East along said Northerly right-of-way line a distance of 789.81 feet to
a point; thence North 0 degrees 30'10" East a distance of 225 feet to a point,
thence South 89 degrees 07'28" East a distance of 540 feet to the Point of
Beginning.
All lying and being in Palm Beach County, Florida, and containing in all 35.71
acres, more or less.
Phase II
--------
The South 636.0 feet of the North 1/2 of the Southwest 1/4 of the Northwest 1/4,
of Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 43 East, Palm Beach County, Florida.
Containing in all 19.342 acres, more or less.
TOGETHER WITH:
The North 10 feet of the South 646 feet of the North 1/2 of the Southwest 1/4 of
the Northwest 1/4; and, the North 10 feet of the South 1/2 of the Southwest 1/4
of the Northwest 1/4; Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 43 East, Palm Beach
County, Florida.
Containing in all .6082 acres, more or less.
Total acres Phase II: 19.95 acres, more or less.
Total Acres - ▇▇▇▇▇▇▇ Mobile Home Park: 55.66 acres, more or less.
Zoned RMH/City of Palm Beach Gardens, operated as a 381-unit mobile home
community and located on Northwest ▇▇▇▇▇ of PGA Boulevard and Prosperity Farms
Road in northern Palm Beach County, Florida.
[Best available legal description. Seller will furnish complete legal
description during Inspection Period]
26
▇▇▇▇▇▇▇ Mobile Home Park
__________________
EXHIBIT "B"
-----------
PROPERTY DOCUMENTATION
----------------------
Within three (3) days from the Effective Date and at all reasonable times
hereafter, Seller shall deliver to Purchaser, or make available at Seller's
offices in the Property, the following items in Seller's possession:
1. An inventory of furniture, furnishings, equipment, and other tangible
personal property to be included in the transaction.
2. A legal description of the Real Property to be included in the
transaction.
3. Seller's most recent existing title insurance policy, abstract, or
both, together with copies of any easements, restrictions, mortgages,
or other encumbrances pertaining to the Park.
4. Any existing surveys of the Park.
5. All Prospectuses approved for the Property together with all Rental
Agreements and Rules and Regulations for the Property.
6. A current rent roll for the Park. The rent roll shall have attached to
it copies of all forms of Rental Agreements used for tenants who are
identified in the rent roll. The rent roll shall specify which Rental
Agreement form is used for each tenant. The rent roll shall identify
any promotional or discounted rents. It shall also identify any tenants
that have notified the Park of their intent to vacate, and those that
rent or sublet mobile homes in the Park.
7. Financial statements for the Park's operation from 1993 to date.
(Subject to provisions in paragraph 4A of the Agreement.)
8. Copies of all contracts of a continuing nature pertaining to the
operation of the Park, including equipment leases, service contracts,
and agreements with employees.
9. All ad valorem tax bills for the past two years together with any
notices of proposed property taxes for the year to date.
10. All utility bills for the past two years and year to date.
11. A schedule setting forth the names of all present employees and their
compensation.
12. Copies of all approved Amendments to Prospectuses and copies of all
written communication pertaining to the Park to and from the Florida
Bureau of Mobile Homes.
13. Copies of all written communications to and from any incorporated
homeowners' association pertaining to the Park
27
▇▇▇▇▇▇▇ Mobile Home Park
__________________
14. Copies of any plans, specifications, or other drawings for the
construction of improvements in the Park, including utilities.
15. Copies of all permits and licenses required for the operation of the
Park.
16. Copies of any written communications in the past two years to and from
any governmental or quasi-governmental authorities pertaining to any
alleged defects, deficiencies in the operation of the Park, or non-
compliance by the Park with any governmental laws or regulations.
17. A written description of any litigation involving the ownership and
operation of the Park. Said description shall cover the past two
years, the present, and any threatened litigation.
18. A copy of any environmental reports or audits pertaining to the Park
within Sellers possession or control.
19. A description of the location of any toxic or hazardous substances
known to Seller to exist in the Park. If any such substances have been
removed from the Park, detailed information pertaining to the removal
shall be provided.
20. Representative copies of all notices sent to tenants of changes to
rent or other charges made by Park for the past three years.
21. All books and records of Seller relating to the Property not
specifically referenced above.
28
▇▇▇▇▇▇▇ Mobile Home Park
__________________
EXHIBIT "C"
-----------
SCHEDULE OF TANGIBLE PERSONAL PROPERTY
--------------------------------------
[to be agreed upon during Inspection Period]
29
▇▇▇▇▇▇▇ Mobile Home Park
__________________
EXHIBIT "D"
-----------
ASSUMED CONTRACTS
-----------------
[to be agreed upon during Inspection Period]
30
LAW OFFICES
SKELDING, LABASKY, CORRY, EASTMAN, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
A PROFESSIONAL ASSOCIATION
THE ▇▇▇▇▇▇▇ BUILDING
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ GOVERNMENTAL CONSULTANTS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ *NOT A MEMBER OF THE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ October 15, 1997 FLORIDA BAR
▇▇▇▇▇▇ ▇. HUSBAND ________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (1897-1984)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (1919-1984)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. REPLY TO: P.O. BOX 969
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. TELE: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Via: Certified Mail -Return Receipt Requested
---------------------------------------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ Preservation, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: PROPOSED SALE OF THE ▇▇▇▇▇▇▇ MOBILE HOME PARK ("COMMUNITY")
Dear ▇▇. ▇▇▇▇▇▇▇:
On October 3, 1997, you were given notice of the Seller's intent to solicit
purchase offers for the Community from the general public. Such notice was
provided to the ▇▇▇▇▇▇▇ Preservation, Inc. (hereafter "Association"), as the
Chapter 723 homeowners association pursuant to the requirements of Section
723.071, Florida Statutes.
The Seller has determined it will modify the terms and conditions upon
which it would accept a purchase offer for the Community. The mobile home
owners residing in the Community, by and through Association, shall have the
right to purchase the Community, provided Association meets the price, terms and
conditions of Seller as contained in the letter to you from ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇, dated October 3. 1997, enclosing the Agreement of Purchase and Sale for the
▇▇▇▇▇▇▇ Mobile Home Park (hereafter the "Agreement"), as modified by the
contents of this letter.
Only those paragraphs and terms and conditions specifically mentioned
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ Preservation, Inc.
October 15, 1997
Page 2
________________________________________________________________________________
below are being changed. The terms of paragraphs 2.B and 29 of the Agreement
are withdrawn entirely and replaced by the language quoted below. In all other
respects, the Agreement remains unchanged. The revised provisions of the
Agreement shall now read:
2. Paragraph 2.B. The provision of paragraph 2B are revised to read as
-------------
follows:
2.B. Balance of Purchase Price: The balance of the Purchase Price, subject
-------------------------
to the provisions and adjustments permitted or required by this Agreement
against the Purchase Price, shall be paid as follows:
(1) The sum of Two Hundred Thousand Dollars ($200,000.00) by confirmed
wire transfer at Closing from the Escrow Agent. The balance of the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser at Closing.
(2) Execution and delivery of a promissory note in an amount equal to the
balance of the Purchase Price after all adjustments and prorations
(the "Note"), secured by an irrevocable standby Letter of Credit due
and payable on January 6, 1998 (the "Letter of Credit") to be issued
by either Wilmington Trust (Delaware); First Trust (Pennsylvania); or
First Union Bank (Pennsylvania) (the "Bank") upon receipt of a
confirmed wire transfer of said funds from Purchaser. All interest or
earnings of any nature on the funds deposited with the Bank shall
accrue solely to thc benefit of Purchaser. Purchaser shall pay all
costs and fees charged by the Bank for its services. The security for
the Note shall be the Letter of Credit, or the proceeds thereof.
Seller shall not look to the property for payment. Seller shall
execute such waivers as may be required by the title insurer of all
legal and/or equitable claims to the Property for repayment of the
Note, including, without limitation, any claim of a vendor's lien. The
Note shall bear
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ Preservation, Inc.
October 15, 1997
Page 3
________________________________________________________________________________
interest at the rate of 5% per annum and shall be paid in a single
installment of principal and accrued interest on January 6, 1998. The
Note shall be paid together with the accrued interest at 5% per annum
on January 6, 1998, by Purchaser. If the Note and accrued interest
are not paid in accordance with these terms, Seller may demand payment
under the Letter of Credit. Upon such payment, the Note shall be
deemed paid in full, satisfied, canceled and shall be returned to
Purchaser. Seller shall further execute such waivers, estoppels or
other instruments as Purchaser's lender may require.
The ▇▇▇▇▇▇▇ Money and all interest thereon, all adjustments,
prorations and other credits, if any, shall be credited against the
cash portion of the Purchase Price at Closing with the remaining
▇▇▇▇▇▇▇ Money being returned to Purchaser at Closing.
29. Termination of Offer. The offer must be executed by all parties no
--------------------
later than November 29, 1997, at 5:00 p.m. Eastern Standard Time. If not fully
executed prior to said time, then this offer shall automatically terminate.
If you have any questions or seek additional information related to the
matters discussed in this letter, you may contact the undersigned, or ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇, at the address and telephone number stated in his letter of October 3,
1997.
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ Preservation, Inc.
October 15, 1997
Page 4
________________________________________________________________________________
Sincerely,
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
For Seller, HGGS Associates
CRPjr/bhc
Enclosure
xc: HGGS Associates
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇, Esq.
All Officers of the Association at addresses listed below
(via: certified mail, return receipt requested/*regular U.S. Mail)
Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and *Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇ RR #2, Kemble
Palm Beach Gardens, FL 33410 Ontario NOH ISO
CANADA
▇▇. ▇▇▇▇▇ ▇▇▇▇▇ and *▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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