SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) April 1, 1999
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WINDSOR PARK PROPERTIES 3
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(Exact Name of Registrant as Specified in Charter)
CALIFORNIA 0-15699 33-0115651
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(State or Other Jurisdiction (Commission (IRS Employer
of Organization) File Number) Identification No.)
6430 SOUTH QUEBEC STREET, ENGLEWOOD, COLORADO 80111
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (303) 741-3707
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<PAGE>
Item 2. Acquisition or Disposition of Assets
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On April 1, 1999, Windsor Park Properties 3, a California Limited
Partnership (the "Partnership"), sold Little Eagle, a manufactured home
community containing 96 homesites located in Indianapolis, Indiana, and nine
mobile home units to Floral Park Cemetary Association, Inc. pursuant to a
Contract for Purchase of Real Estate and an Asset Purchase Agreement, the terms
of which were determined through arms-length negotiations between the parties.
The aggregate purchase price paid for Little Eagle and the nine mobile home
units was $925,000, net of selling expenses of approximately $90,000.
In determining the price to be paid for Little Eagle, the Partnership
considered the historical and expected cash flow from the property, the nature
of occupancy trends and terms of the leases in place, current operating costs
and taxes, the physical condition of the property and other factors. The
Partnership also considered the capitalization rates of recently sold
manufactured home communities in the same geographic area as the property. The
Partnership listed the property with Continental Atlantic, Inc. and received
numerous offers during the six months of actively marketing the property. The
offer from Floral Park Cemetery Association, Inc. was substantially better than
other offers received.
Item 7. Financial Statements and Exhibits
- ------------------------------------------
(a) Financial Statements:
None.
(b) Pro Forma Financial Information:
(i) Pro Forma Condensed Balance Sheet at December 31, 1998.
(Unaudited).
The following unaudited pro forma condensed balance sheet presents the
financial position of Windsor Park Properties 3 on December 31, 1998,
assuming that the sale of the Little Eagle manufactured home
community, which occurred on April 1, 1999, occurred on that date.
This statement should be read in conjunction with the other pro forma
financial statements and notes thereto and the discussion of the
property contained in Item 2, included elsewhere in this Form 8-K.
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WINDSOR PARK PROPERTIES 3
PRO FORMA CONDENSED BALANCE SHEET
DECEMBER 31, 1998
(unaudited)
<TABLE>
<CAPTION>
Sale of Proforma
Historical Little Eagle December 31, 1998
----------------------------------------------------
ASSETS
<S> <C> <C> <C>
Property held for investment, net $ 3,368,400 $ - $ 3,368,400
Property held for sale, net 444,200 (444,200)a -
Investments in joint ventures and limited partnerships 1,256,000 - 1,256,000
Cash and cash equivalents 640,800 (565,300)a,b,c 75,500
Deferred financing costs, net 90,000 - 90,000
Other assets 101,600 (9,200)a 92,400
------------ ----------- -----------
Total assets $ 5,901,000 $(1,018,700) $ 4,882,300
============ =========== ===========
LIABILITIES AND PARTNERS' EQUITY
Liabilities:
Mortgage notes payable $ 2,970,400 $(1,800,000)b $ 1,570,400
400,000c
Accounts payable 5,200 (3,400)a 1,800
Accrued expenses 214,100 (8,100)a 206,000
Tenant deposits and other liabilities 42,400 (3,900)a 38,500
Due to general partner and affiliates 24,200 - 24,200
------------ ----------- -----------
Total liabilities 3,256,300 (1,415,400) 1,840,900
Partners' equity:
Limited partners 2,696,800 340,733a 3,037,533
General partners (52,100) 55,967a 3,867
----------- ----------- -----------
Total Partners' Equity 2,644,700 396,700 3,041,400
------------ ------------ -----------
Total Liabilities and Partners' Equity $ 5,901,000 $(1,018,700) $ 4,882,300
============ =========== ===========
</TABLE>
See accompanying notes to pro forma condensed balance sheet.
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Windsor Park Properties 3
Notes to Pro Forma Condensed Balance Sheet
December 31, 1998
(unaudited)
NOTE 1. Basis of Presentation
---------------------
The unaudited pro forma condensed balance sheet of Windsor Park
Properties 3 (the "Partnership") presents the financial position of
the Partnership on December 31, 1998, assuming that the sale of the
Little Eagle manufactured home community, which occurred on April 1,
1999, occurred on that date.
NOTE 2: Pro forma Adjustments
---------------------
(a) This adjustment eliminates the net book value, other assets,
accounts payable, and other liabilities and records the sales
proceeds of the Little Eagle manufactured home community and
related gain.
(b) This adjustment represents the repayment of the $1,800,000
mortgage loan collateralized by the Pondarosa, Little Eagle and
Shady Hills manufactured home communities.
(c) This adjustment represents the $400,000 term loan obtained from
the First National Bank of Chicago. The proceeds from this term
loan were used to repay the $1,800,000 mortgage loan.
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(ii) Pro Forma Condensed Statement of Operations for the year ended
December 31, 1998 (Unaudited).
The following unaudited pro forma condensed statement of
operations presents the results of operations of the Partnership for
the year ended December 31, 1998 assuming that the sale of the Little
Eagle manufactured home community occurred on January 1, 1998. The
Little Eagle community was sold on April 1, 1999. The pro forma
statement of operations does not present the gain on sale of
investment property that the partnership realized from the sale. This
statement should be read in conjunction with the other pro forma
financial statements and notes thereto and the discussion of the
property contained in Item 2 included elsewhere in this Form 8-K.
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WINDSOR PARK PROPERTIES 3
PRO FORMA CONDENSED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1998
(unaudited)
<TABLE>
<CAPTION>
Pro Forma
Sale of Year ended
Historical Little Eagle December 31, 1998
----------------- ------------ -----------------
REVENUES
<S> <C> <C> <C>
Rent and utilities $ 1,687,000 $ (200,400)a $ 1,486,600
Equity in earnings (losses) of joint ventures and 8,100 - 8,100
limited partnerships
Interest 27,900 - 27,900
Other 61,600 (21,400)a 40,200
------------- ------------ ------------
1,784,600 (221,800) 1,562,800
COSTS AND EXPENSES
Property operating 995,900 (133,000)a 862,900
Interest 279,800 (161,500)b 130,800
12,500c
Depreciation 227,100 (31,200)d 195,900
General and administrative: -
Related parties 36,200 - 36,200
Other 65,200 - 65,200
------------- ------------ ------------
1,604,200 (313,200) 1,291,000
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Income before extraordinary item $ 180,400 91,400 $ 271,800
============= ============ ============
Basic and diluted earnings per limited partnership unit:
Income before number of limited partnership units
extraordinary item $ 0.93 $ 0.47 $ 1.40
============= ============= ============
Number of limited partnership units 190,213 - 190,213
============= ============
See accompanying notes to pro forma condensed statement of operations.
</TABLE>
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Windsor Park Properties 3
Notes to Pro Forma Condensed Statement of Operations
For the Year Ended December 31, 1998
(unaudited)
NOTE 1. Basis of Presentation
The unaudited pro forma condensed statement of operations of Windsor
Park Properties 3 (the "Partnership") presents the results of
operations for the Partnership for the year ended December 31, 1998,
assuming that the sale of the Little Eagle manufactured home community
occurred on January 1, 1998. The Little Eagle community was sold on
April 1, 1999. The pro forma condensed statement of operations does
not present the gain on sale of investment property that the
Partnership realized from the sale.
NOTE 2: Pro Forma Adjustments
(a) This adjustment eliminates the operating results relating to the
Little Eagle community for the year ended December 31, 1998.
(b) This adjustment eliminates the interest expense for the
$1,800,000 mortgage loan that was repaid.
(c) This adjustment reflects the interest expense for the $400,000
term loan, obtained in order to repay the $1,800,000 mortgage
loan.
(d) This adjustment eliminates deprecation expense relating to the
Little Eagle community for the year ended December 31, 1998.
(c) Exhibits
Exhibit 10.1 Contract for the Purchase of Real Estate, dated January
21, 1999, by and between Floral Park Cemetery Association, Inc. and the
Partnership.
Exhibit 10.2 Asset Purchase Agreement, dated January 21, 1999, by and
between Floral Park Cemetery Association, Inc. and the Partnership.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 13, 1999 WINDSOR PARK PROPERTIES 3,
a California Limited Partnership
By: THE WINDSOR CORPORATION, its
general partner
By: /S/ STEVEN G. WAITE
----------------------------------
Steven G. Waite
President
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Exhibit Index
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Exhibit No. Description
- ----------- -----------
10.1 Contract for Purchase of Real Estate,
dated January 21, 1999, by and between
Floral Park Cemetery Association, Inc. and
the Partnership.
10.2 Asset Purchase Agreement, dated January
21, 1999, by and between Floral Park
Cemetery Association, Inc. and the
Partnership.
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Exhibit 10.1
CONTRACT FOR PURCHASE OF REAL ESTATE
THIS CONTRACT FOR PURCHASE OF REAL ESTATE (the "Contract"), is made and
entered into by and between Floral Park Cemetery Association, Inc., an Indiana
corporation, ("Purchaser") and Windsor Park Properties 3, a California limited
partnership ("Seller").
AGREEMENT
In consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and the mutual covenants herein
contained, Seller and Purchaser hereby agree as follows:
1. Purchase and Sale. Purchaser hereby agrees to purchase from Seller and
Seller hereby agrees to sell to Purchaser all of Seller's right, title and
interest in the following:
(a) Land: That certain real estate located in Marion County,
Indianapolis, Indiana, and commonly known as 3802 Cossell Road,
Indianapolis, Indiana, more particularly described in Exhibit A, attached
hereto and made a part hereof, and containing approximately 12.03 acres,
more or less (collectively, the "Real Estate");
(b) Improvements: All buildings, structures, fixtures, and other
improvements now or hereafter erected or situated on the Real Estate,
either permanently installed and affixed thereto, or which belong to or are
used in connection with the Real Estate (collectively, the "Improvements");
(c) Appurtenances: All tenements, hereditaments, rights, privileges,
easements, interests and appurtenances now or hereafter belonging or in any
wise pertaining to the Real Estate and/or the Improvements, including, but
not limited to, any right, title, and interest in and to any streets or
other public ways adjacent to the Real Estate (collectively, the
"Appurtenances") (the Real Estate, the Improvements, and the Appurtenances
being hereinafter referred to collectively as the "Real Property"); and
d) Personal Property: All personal property owned by Seller, located
on or in the Real Property, used in connection with the operation or
maintenance of the Real Property, more particularly described in, and being
sold pursuant to, the Asset Purchase Agreement executed of even date
herewith, by and between the parties hereto (the "Asset Purchase
Agreement") (collectively, the "Personal Property") (the Personal Property
and the Real Property being referred to herein collectively as the
"Property").
2. Earnest Money. Within five (5) business days after execution of this
Contract by Seller and Purchaser, Purchaser shall deliver to the Title Company
(as such term is hereinafter defined) the sum of Fifteen Thousand and No/100
Dollars ($15,000.00) as earnest money (the "Earnest Money"). The Earnest Money
shall be held by the Title Company in escrow, subject to the terms and
conditions hereinafter set forth. The Earnest Money shall be applied to the
obligations of Purchaser at the Closing (as such term is hereinafter defined in
Paragraph 4 below) and shall be credited against any portion thereof payable in
cash.
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3. Purchase Price and Manner of Payment. The purchase price for the
Property (the "Purchase Price") shall be Eight Hundred Seventy Five Thousand and
No/100 Dollars ($875,000.00). The Purchase Price (less the Earnest Money and
subject to other adjustments and prorations provided for herein) shall be paid
by Purchaser to Seller in immediately available funds at Closing.
4. Closing. The purchase and sale of the Property shall be closed on a date
and at a time mutually agreed upon by Purchaser and Seller which is within
thirty (30) days following satisfaction of the conditions precedent set forth in
Paragraph 5 hereof and all conditions in the Asset Purchase Agreement (or
Purchaser's waiver of such conditions precedent); provided, however, that
closing shall occur not later than the 31st day of January, 1999, unless the
parties mutually agree to a later closing date, and shall be contemporaneous
with closing on the Asset Purchase Agreement.
The purchase and sale of the Property shall be closed at the offices of the
Title Company, or at such other location as may be mutually agreed to by the
parties. Such closing shall be an "insured closing." The date and event of the
consummation of the purchase and sale of the Property as contemplated hereby is
referred to herein, respectively, as the "Closing Date" and the "Closing". Any
additional closing costs related to the insured closing and not specifically
covered herein shall be equally divided between Seller and Purchaser.
5. Conditions Precedent to Closing. Purchaser's obligations hereunder shall
be subject to the condition that as of the Closing Date there is no breach of
any of Seller's representations or warranties hereunder in Paragraph 12; and to
the satisfaction of the following additional conditions precedent:
a. Title Insurance. Title to the Property shall be good and marketable
and shall be conveyed to Purchaser free and clear of any and all liens,
encumbrances, claims, and interests of any kind or nature whatsoever except
the following:
(1) current real estate taxes not delinquent; and
(2) such other liens, rights, and encumbrances as may be
approved by Purchaser (collectively, the "Permitted
Exceptions").
Within ten (10) days after Purchaser's execution of this Contract (the
date upon which Purchaser executes this Contract being referred to herein
as the "Effective Date"), Seller shall have furnished Purchaser, at
Seller's sole cost and expense, a commitment for an owner's policy of title
insurance (the "Title Commitment") issued by Chicago Title Insurance
Company (the "Title Company"), containing the agreement of the Title
Company to issue an owner's policy of title insurance (ALTA Form 1990B)
insuring fee simple title to the Property, free and clear of all liens,
encumbrances, claims, and interests except for the Permitted Exceptions and
the standard pre-printed exceptions in the Title Commitment, in the name of
Purchaser upon delivery of a general warranty deed from Seller to
Purchaser, together with legible copies of all instruments identified as
exceptions in the Title Commitment. The Title Commitment shall contain the
commitment of the Title Company to insure such title in Purchaser for the
full amount of the Purchase Price. Any closing fee charged by the Title
Company shall be divided equally between Seller and Purchaser.
Permitted Exceptions shall be determined by Purchaser, in its
reasonable discretion, within five (5) days after receipt of the Title
Commitment. If any exceptions, other than the Permitted Exceptions, are not
cured by Seller, at its sole cost and expense, within fifteen (15) days
after receipt of notice thereof from Purchaser, or thereafter waived by
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Purchaser as additional Permitted Exceptions, this Contract shall
terminate, the Earnest Money shall be promptly returned to Purchaser, and
neither party shall have any further obligation hereunder. Notwithstanding
the foregoing, in the event there are exceptions to title that are not
acceptable to Purchaser, but are curable for an aggregate cost of less than
$2,000, Seller shall cure such exceptions in a reasonably prompt manner,
and the parties shall proceed to Closing. In the event the aggregate cost
of curing such exceptions exceeds $2,000, unless: (i) Seller otherwise
agrees in writing to cure such exceptions for amounts in excess of $2,000;
or (ii) such additional cure obligations are waived by Purchaser, this
Contract shall terminate, in which event the Purchaser shall be entitled to
a return of the Earnest Money.
b. Survey. Within thirty (30) days after the Effective Date, Purchaser
shall obtain at its sole cost and expense, a staked survey of the Property
to be prepared by a licensed, registered Indiana surveyor or engineer
reasonably acceptable to Purchaser (such survey for the Property being
referred to herein as the "Survey"). The Survey (a) shall be prepared in
accordance with the Minimum Standard Detail Requirements of the American
Land Title Association, (b) shall be in a form and shall be certified as of
a date satisfactory to the Title Company to delete the standard survey
exceptions from the Title Commitment, (c) shall be certified to Purchaser,
the Title Company and any lender providing financing to Purchaser for
consummation of the purchase and sale of the Property, (d) shall
specifically show all improvements, easements, setback lines, drainage
ditches and other such matters evidenced by the Title Commitment,
applicable zoning laws or physical inspection of the Real Property, and (e)
shall specifically disclose whether (and, if so, what part of) the Real
Property is in an area designated as requiring flood insurance under
applicable federal laws regulating lenders and if the Real Property is not
located within a Special Flood Hazard Area, certify such fact.
Notwithstanding the foregoing, Seller agrees to provide Purchaser with the
most recent survey of the Real Property in its possession as to allow
Purchaser to have it updated.
Within ten (10) business days after receipt by Purchaser of the
Survey, Purchaser shall advise Seller of any objections affecting the
marketability of title to the Property or Purchaser's intended use of the
Property disclosed by the Survey. Any item to which no objection is made
shall thereafter be deemed a Permitted Exception. If any objections are not
able to be cured by Seller, at its sole cost and expense, within ten (10)
days after receipt of notice from Purchaser, or thereafter waived by
Purchaser as additional Permitted Exceptions, this Contract shall
terminate, the Earnest Money shall be promptly returned to Purchaser, and
neither party shall have any further obligation hereunder. Notwithstanding
the foregoing, in the event there are matters disclosed by the Survey that
are not acceptable to Purchaser, but are curable for an aggregate cost of
less than $2,000, Seller shall cure such matters in a reasonably prompt
manner, and the parties shall proceed to Closing. In the event the
aggregate cost of curing such matters exceeds $2,000, unless: (i) Seller
otherwise agrees in writing to cure such exceptions for amounts in excess
of $2,000; or (ii) such additional cure obligations are waived by
Purchaser, this Contract shall terminate, in which event the Purchaser's
sole remedy shall be return of the Earnest Money.
Notwithstanding the foregoing, if the Survey does not certify that no
portion of the Real Property is within a Special Flood Hazard Area,
Purchaser shall, at its sole discretion and at its sole cost and expense,
terminate this Contract should it decide, in its sole discretion, that the
property is not suited for all or any of Purchaser's future intended uses.
In such event, Purchaser shall be entitled to a return of the Earnest
Money.
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c. Environmental Assessment. Within five (5) business days after the
Effective Date, Purchaser shall have the right, in its discretion, to order
a Phase I and/or Phase II Environmental Assessment for the Real Property
prepared by an independent consultant (collectively, the "Environmental
Assessments"), that evidences that the environmental condition of the Real
Property has not been adversely affected by past uses and is free of
underground storage tanks, hydrocarbon contamination, asbestos containing
materials, polychlorinated biphenyls, hazardous materials, hazardous
substances, and hazardous waste (as such terms are defined in applicable
state, federal and local laws, rules and regulations), and that the Real
Property is not in violation of any state, federal or local environmental,
health or safety law, rule or regulation. The Environmental Assessments
shall be addressed to Purchaser or any lender of Purchaser.
Within five (5) business days after receipt by Purchaser of any
Environmental Assessment, Purchaser shall advise Seller of any objections
to the findings of such Environmental Assessment or Purchaser's desire to
do additional investigation into the environmental condition of the
Property. If any objections are not cured by Seller, at its sole cost and
expense, within ten (10) days after receipt of notice from Purchaser, or
thereafter waived by Purchaser as additional Permitted Exceptions, this
Contract shall terminate, the Earnest Money shall be promptly returned to
Purchaser, and neither party shall have any further obligation hereunder.
Notwithstanding the foregoing, in the event there are objections to matters
disclosed by the Environmental Assessment that are not acceptable to
Purchaser, but are curable for an aggregate cost of less than $2,000,
Seller shall cure such objections in a reasonably prompt manner, and the
parties shall proceed to Closing. In the event the aggregate cost of curing
such objections exceeds $2,000, unless: (i) Seller otherwise agrees in
writing to cure such objections for amounts in excess of $10,000; or (ii)
such additional cure obligations are waived by Purchaser, this Contract
shall terminate, in which event the Purchaser's sole remedy shall be return
of the Earnest Money.
d. Inspection. Within twenty (20) days after the Effective Date,
Purchaser shall have the right to inspect the Property and shall have
received a satisfactory inspection of the Property by a qualified
professional to confirm that the Property is usable for the purposes for
which Purchaser intends (the "Inspection"). This inspection shall include
but not be limited to matters regarding the licensing of the Property with
appropriate federal, state, and local authorities, and ensuring the Seller
has obtained the necessary permits to operate the Little Eagle Mobile Home
Park located on the Property in the manner represented to Purchaser. If
there are any statements of fact in the Inspection which are unsatisfactory
to Purchaser in Purchaser's sole discretion, Purchaser shall have the right
to terminate this Contract, and the Earnest Money shall be promptly
returned to Purchaser as its sole remedy and neither party shall have any
further obligation hereunder. In the event this Contract is terminated for
any reason, Purchaser shall repair (at Purchaser's expense) any damage
occurring during the Inspection.
e. Covenants. Seller shall have complied with, fulfilled, and
performed in all respects each covenant, term, and condition to be complied
with, fulfilled, and performed by Seller hereunder.
f. Consents. Seller shall have received all consents and approvals
necessary for the consummation of the transactions contemplated by this
Contract.
g. Rent Rolls. Within ten (10) days after the Effective Date, Seller
shall deliver to Purchaser certified rent rolls for the Property. Seller
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shall also make available to Purchaser for inspection, copies of all of the
executed leases for each tenant of the Property, which leases shall either
not require the consent of tenants to be assigned to Purchaser or which
consent shall have already been obtained by Seller, in a form reasonably
satisfactory to Purchaser. If there are any items which are unsatisfactory
to Purchaser in Purchaser's reasonable discretion, and which cannot be
reasonably cured by Seller, Purchaser shall have the right to Terminate
this Contract, and the Earnest Money shall be promptly returned to
Purchaser as its sole remedy.
6. Closing Adjustments and Prorations.
a. Taxes and Assessments. All real estate taxes assessed against the
Property for years prior to the year of the Closing and all penalties and
interest thereon shall be paid by Seller. All real estate taxes assessed
against the Property for the year of the Closing shall be prorated between
Seller and Purchaser as of the Closing Date on the basis of the exact
number of days each will own the Property during the year of the Closing.
If the amount of such real estate taxes is not known at the Closing,
closing adjustments will be finally made on the basis of the most recent
tax rate and assessed valuation for the Property and, if the Property has
been taxed as part of a tax parcel including other real estate, a
reasonable estimate as to the allocation of taxes between the Property and
such other real estate. Purchaser shall have the right, in the name of
Seller or Purchaser, to contest or appeal any such tax or assessment.
Immediately upon conveyance of the Property, Seller shall pay all property
transfer taxes, documentary stamp taxes, and gross income or adjusted gross
income taxes then due and payable in respect of the transfer hereby
contemplated. Any taxes or assessments in respect of the Property not
assumed by Purchaser, but which are not due and payable at or prior to the
Closing, shall be allowed to Purchaser as a credit against the Purchase
Price at the Closing, and Seller shall have no further liability for such
taxes or assessments.
b. Recording Fees. Seller shall pay all recording costs related to the
conveyance of the Property to Purchaser. Purchaser shall pay all recording
costs, if any, related to the financing of the Property.
c. Insurance Contracts. All insurance maintained by Seller in respect
of the Property, if any, shall be cancelled as of the Closing Date.
d. Utilities. Water, electricity, sewer, gas, cable television,
telephone, and all other utility charges shall be prorated based, to the
extent practicable, on final meter readings and final invoices, and on the
basis of the actual number of days of the month which shall have elapsed as
of the Closing Date.
e. Rents. All rents under the Leases for the month in which the
Closing occurs shall be prorated as of the Closing Date. All advance
payments of rents, other than for the month in which Closing occurs, and
all security deposits shall be paid by Seller to Purchaser at Closing. All
rent payable prior to the Closing Date which has not been collected by
Seller as of the Closing Date shall remain the property of Seller and
Seller shall bear sole responsibility for collecting all such delinquent
rent after the Closing Date using all remedies available at law or in
equity to Seller excluding eviction. Purchaser shall bear no responsibility
or liability for collecting any delinquent rent.
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For purposes of calculating prorations under this Contract, Purchaser shall
be deemed to be in title to the Property, and therefore entitled to the income
and rents therefrom and responsible for the expenses thereof, for the entire day
upon which the Closing occurs. Bills received after the Closing which relate to
expenses incurred, services performed or other amounts allocable to the period
prior to the Closing Date and which relate to the operation or ownership of the
Property shall be paid by Seller. All costs, expenses, bills and other
obligations relating to the operation of the Property which are incurred or
accrued through the Closing Date shall be the obligation of Seller.
7. Inspections. In order to make the inspections and other matters provided
for in Paragraph 5, Purchaser and its employees, agents, contractors, and
engineers shall, upon written notice to Seller, have the right to enter the
Property at reasonable times and from time to time for purposes of inspecting
and making such other reviews, investigations, and tests as Purchaser reasonably
deems necessary or desirable.
8. Risk of Loss; Condemnation. All risk of loss or damage to the Property
occurring subsequent to the date hereof and on the Closing Date shall be borne
by Seller. If any of the Property shall suffer a "material" (as such term is
hereinafter defined) loss by fire, flood, tornado, accident or other cause after
the date hereof and on the Closing Date, or if proceedings to take or condemn
the whole or any "material" part of the Property for public or quasi-public use
under any statute or by the right of eminent domain are commenced or threatened
prior to or on the Closing Date, Seller shall give Purchaser prompt written
notice thereof, and Purchaser may, at its option, terminate this Contract by
delivery to Seller of written notice of such termination within five (5) days
after receipt of notice of such damage, destruction or condemnation. Upon
receipt of such notice of termination, the Earnest Money shall be promptly
returned to Purchaser, and each party shall be relieved of any further
obligations hereunder. If Purchaser elects not to so terminate this Contract,
then: (a) the Closing shall take place as provided in this Contract; and (b)
Seller shall assign to Purchaser all of Seller's rights with respect to the
settlement of all insurance proceeds and/or any and all damages or awards
receivable in respect of such damage, destruction or condemnation. After the
Closing, Purchaser shall have the exclusive right to settle the loss and to
receive all proceeds of the insurance covering the Property so damaged or
destroyed, if a settlement of insurance proceeds has not occurred.
If any of the Property shall suffer a loss by fire, flood, tornado,
accident or other cause after the date hereof and on the Closing Date which is
not "material," or if proceedings to take or condemn any part of the Property
which is not "material" for public or quasi-public use under any statute or by
the right of eminent domain are commenced or threatened prior to or on the
Closing Date, Seller shall give Purchaser prompt written notice thereof and
shall use its best efforts to restore, prior to the Closing, the Property to its
previous condition. If Seller is unable or unwilling to complete said
restoration prior to the Closing, Purchaser shall be entitled to elect by
written notice to Seller either (a) to receive credit at the Closing for the
cost of restoration to be incurred by Purchaser, or (b) to accept an assignment
from Seller to Purchaser of all of Seller's rights with respect to the
settlement of all insurance proceeds and/or any and all damages or awards
receivable in respect of such damage, destruction or condemnation. In the event
Purchaser elects the option set forth in clause (a) of this subparagraph, Seller
shall be entitled to retain all insurance proceeds and/or any damages or awards
receivable with respect to such damage, destruction or condemnation.
For purposes of this Paragraph 8, "material" shall mean damage to,
destruction of or condemnation of the Property for which the aggregate estimated
cost of repair, restoration, rehabilitation or replacement (including all
indirect and incidental costs and expenses) is in excess of Fifteen Thousand
Dollars ($15,000.00).
9. Possession of the Property. Possession of the Property shall be
delivered by Seller to Purchaser at the Closing, free and clear of the rights of
any other party to possession thereof, the rights of tenants lawfully in
possession. Upon delivery of possession to Purchaser, the Property shall be in
substantially the same condition as it is on the date hereof, ordinary wear and
tear excepted.
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10. Seller's Obligations at Closing. At the Closing, Seller agrees to
deliver to Purchaser in accordance with the terms of this Contract the
following:
a. An owner's policy of title insurance issued as provided in
Paragraph 5(a) hereof, subject only to the Permitted Exceptions;
b. A duly authorized and executed General Warranty Deed in recordable
form conveying good and marketable title to the Property, subject only to,
easement and encumbrances of record and the Permitted Exceptions;
c. A duly authorized and executed Vendor's Affidavit in the form most
recently published by the Indianapolis Bar Association or otherwise
required by the Title Company;
d. A duly authorized and executed affidavit in a form reasonably
satisfactory to Purchaser stating that Seller is not a "Foreign Person" as
such term is used in Section 1445 of the Internal Revenue Code;
e. A duly authorized and executed sales disclosure statement, as
required by I.C. 6-1.1-5.5 et seq. (the "Sales Disclosure Statement");
f. A duly authorized and executed certificate of Seller stating that
the Property is not "property" as defined in I.C. 13-11-2-174 and Seller is
not required to provide a disclosure statement under I.C. 13-25-3-1 et seq.
(Indiana Responsible Property Transfer Law);
g. A duly authorized and executed certificate of Seller to the effect
that each of Seller's representations and warranties contained herein is
true and correct in all respects as of the Closing Date, and that Seller
has complied with, fulfilled, and performed in all respects each covenant,
term, and condition to be complied with, fulfilled or performed by it
hereunder;
h. Certified copies of resolutions of Seller adopting and approving
this Contract and authorizing consummation of the transactions contemplated
by this Contract; and
i. A certified copy of the rent rolls and a copy of the form lease
Seller is using to lease lots on the Property, the rent rolls being in
substantially the same condition as earlier delivered under Section 5g.
j. Such other instruments, documents, and considerations which may
reasonably be required by Purchaser or Purchaser's counsel to effectuate
the transaction evidenced by this Contract.
All of the documents and instruments required pursuant to this Paragraph 10
or otherwise in connection with the consummation of this Contract shall be in a
form and manner reasonably satisfactory to Purchaser's counsel and Seller's
counsel.
11. Purchaser's Obligations at Closing. At the Closing, Purchaser agrees to
deliver to Seller in accordance with the terms of this Contract the following:
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a. The amount of the Purchase Price payable in such form as set forth
in Paragraph 3 above, subject to the Closing adjustments and prorations
provided for herein and less the amount of the Earnest Money;
b. A duly authorized and executed Sales Disclosure Statement;
c. Certified copies of resolutions of Purchaser adopting and approving
this Contract and authorizing consummation of the transactions contemplated
by this Contract; and
d. Such other instruments, documents, and considerations which may
reasonably be required by Seller or Seller's counsel to effectuate the
transaction evidenced by this Contract.
12. Representations and Warranties. As a material inducement to Purchaser
for entering into this Contract, Seller hereby represents and warrants to
Purchaser as follows:
a. Seller has full right, power, and authority to execute and deliver
this Contract, to consummate the transactions contemplated hereby, and to
comply with the terms and conditions hereof; and there are no legal,
contractual or other restrictions upon Seller's right, power or authority
to sell and convey the Property to Purchaser;
b. Seller owns good, marketable, and indefeasible fee simple title to
the Property, free and clear of any and all liens, leases, mortgages,
pledges, security interests, conditional sales agreements, charges and
other claims, interests or encumbrances, except for: (i) liens and
mortgages that shall be paid off at or prior to Closing; (ii) the Permitted
Exceptions; (iii) other liens and encumbrances of record and (iv) leasehold
interests of tenants lawfully in possession.
c. To the best of Seller's knowledge without a duty of inquiry, there
are no violations of any laws, regulations, codes, ordinances, orders or
requirements affecting the Property, including, but not limited to,
applicable laws, regulations, ordinances or requirements relating to
environmental, pollution, health or safety and zoning for use as a mobile
home park as it is currently used and as has been represented to Purchaser;
d. Seller, its agents, and its employees have not received any written
notice that the Property is in violation of any state, federal or local
environmental, health or safety law, rule or regulation;
e. Seller, its agents, and its employees have received no written
notice from any insurance carrier of defects or inadequacies in the
Property which, if not corrected, would result in termination of insurance
coverage or an increase in the cost thereof;
f. Seller, its agents, and its employees have not entered into any
contract, agreement or option, other than this Contract, granting to any
party the right to purchase the Property;
g. To the best of Seller's knowledge without a duty of inquiry, there
are no mechanic's or materialman's liens against the Property, and no
unpaid claims for labor performed, materials furnished or services rendered
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in connection with constructing, improving or repairing the Property in
respect of which liens may or could be filed against the Property;
h. To the best of Seller's knowledge without a duty of inquiry, the
Property is not subject to any easements, rights, duties, obligations,
covenants, conditions, restrictions, limitations, agreements, liens or
encumbrances not of record;
i. To the best of Seller's knowledge without a duty of inquiry, there
are not constructed, deposited, stored, disposed, placed or located on the
Property (including surface soils, subsurface soils, surface water, or
groundwater) any material amounts of Hazardous Materials. As used herein,
the term "Hazardous Materials" includes, without limitation, any material
or substance which is (a) listed or defined as a "hazardous waste,"
"extremely hazardous waste," "restricted hazardous waste," "hazardous
substance," "extremely hazardous substance," or "toxic substance," or words
of similar import, under the Resource Conservation and Recovery Act, as
amended ("RCRA"), the Comprehensive Environmental Response, Compensation
and Liability Act, as amended ("CERCLA"), the Federal Clean Water Act, as
amended ("FCWA"), or the Toxic Substance Control Act, as amended ("TSCA"),
or Title 13 of the Indiana Code (b) petroleum, (c) asbestos, (d)
polychlorinated biphenyl, or (e) any other pollutant, toxic substance, or
hazardous substance, material or waste, under any other federal, state or
local environmental law, regulation, ordinance or rule existing as of the
date hereof or enacted prior to the Closing;
k. Seller is not required to provide Purchaser with a "disclosure
statement" as a result of the transaction contemplated hereby pursuant to
the Indiana Responsible Real Property Transfer Law, I.C. ss.ss. 13-25-3-1
et seq.;
l. The Property is in the possession of Seller, and to the best of
Seller's knowledge without a duty of inquiry, no other person has a right
to possession of all or any part of the Property, except tenants lawfully
in possession pursuant to leases;
m. To the best of Seller's knowledge without a duty of inquiry,
Seller, its agents, and its employees have complied with all environmental
laws, including but not limited to RCRA, CERCLA FCWA, TSCA, and Title 13 of
the Indiana Code;
n. The certified rent roll delivered to Purchaser under Section 5g and
10i is accurate in all material respects; and
o. The Property is licensed for one hundred (100) mobile home sites by
the Indiana State Board of Health.
p. No representation or warranty made by Seller herein contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained in any such
representation or warranty, in light of the circumstances under which they
were made, not misleading.
Each of the foregoing representations and warranties shall be and remain
true at and as of the Closing Date and shall remain in effect and shall survive
the Closing Date and transfer of title to the Property to Purchaser. There are
no implied warranties by the Seller in connection with this Agreement. With the
exception of the representations and warranties set forth herein, Seller makes
no other representations or warranties, express or implied and, Seller conveys
the Property to Purchaser in its "as is where is" condition.
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13. Use of Brokers. Seller covenants to pay at the Closing a six percent
(6%) commission, based on the cumulative purchase price under both this Contract
and the Asset Purchase Agreement, in connection with the transaction
contemplated hereby which shall be paid by Seller as follows: (i) Continental
Atlantic, Inc. shall be paid a three percent (3%) commission, and (ii) Snell
Real Estate Evaluation Co., Inc. shall be paid a three percent (3%) commission.
Seller and Purchaser each represent and warrant to the other that each has
contracted with no real estate broker, finder or other person with respect to
this Contract or the transactions contemplated hereby other than those persons
and entities listed in the preceding sentence. Seller and Purchaser each agree
to indemnify and hold harmless one another against any loss, liability, damage
or claim incurred by reason of any brokerage commission or finder's fee alleged
to be payable because of the indemnifying party's representation or obligation
in this Paragraph 13 being untrue or unperformed. Such indemnity obligation
shall be deemed to include the payment of reasonable attorneys' fees and court
costs incurred in defending any such claim.
14. Default & Termination. In the event the purchase and sale contemplated
by this Contract is not consummated due to the breach hereof or default
hereunder or breach or default of any provision of the Asset Purchase Agreement
by Purchaser and such breach or default shall not have been cured by Purchaser
within fifteen (15) days (or such additional time as may be reasonably
necessary) after delivery by Seller of written notice thereof to Purchaser, then
Seller shall be entitled to retain the Earnest Money as full liquidated damages
and Seller may avail itself of any and all remedies at law or in equity,
including, but not limited to, specific performance and an action for damage for
breach hereunder and Seller shall further be entitled to recover attorneys fees
in connection with any such action.
In the event the purchase and sale contemplated by this Contract is not
consummated due to the breach hereof or default hereunder or breach or default
of any provision of the Asset Purchase Agreement by Seller, or if any
representation or warranty made herein by Seller is untrue or breached as of the
Closing Date, then, after providing written notice to Seller of such breach,
default or misrepresentation and allowing Seller fifteen (15) days after receipt
of such notice (or such additional time as may be reasonably necessary) to cure,
then the Earnest Money shall be returned immediately to Purchaser, and Purchaser
may avail itself of any and all remedies at law or in equity, including, but not
limited to specific performance and an action for damages for the breach of any
of the representations or warranties set forth herein, and shall further be
entitled to recover attorneys' fees incurred in connection with any such action.
In the event the purchase and sale contemplated by this Contract is not
consummated due to the failure, without fault on the part of either party, to
satisfy any of the conditions set forth in Paragraph 5 hereof within the
respective time periods provided for therein or of any of the conditions in the
Asset Purchase Agreement, Purchaser may, at its sole option (a) terminate this
Contract, whereupon the Earnest Money shall be returned immediately to Purchaser
and this Contract shall terminate without further liability on the part of
either party and shall be of no further force or effect, or (b) elect to waive
any of such conditions and proceed with the Closing in accordance herewith.
15. Notices. All notices, requests, demands, consents, and other
communications required or permitted under this Contract shall be in writing and
shall be deemed to have been duly and properly given on the date of service if
delivered personally or on the date of mailing if deposited in a receptacle of
the United States mail, first class postage prepaid, addressed appropriately as
follows:
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If to Seller: Windsor Park Properties 3
c/o Windsor Corp.
Attention: Steve Waite
6430 South Quebec Street
Englewood, Colorado 80111
with a copy to:
Timmis & Inman, L.L.P.
Attn: Bradley J. Knickerboker, Esq.
300 Talon Center
Detroit, Michigan 48207
If to Purchaser: Floral Park Cemetery Association, Inc.
Attn: Bruce Buchanan
27 Kessler Boulevard West Drive
Indianapolis, Indiana 46228
with a copy to:
Bingham Summers Welsh & Spilman
Attention: Gary L. Klotz, Esq.
2700 Market Tower
10 West Market Street
Indianapolis, Indiana 46204-2982
Either party may change its address for purposes of this paragraph by giving the
other party written notice of the new address in the manner set forth above.
16. Assignment. Seller may not assign its interest in this Contract without
the prior written consent of Purchaser. Purchaser shall be permitted to assign
this Contract to any person or entity; provided, however, that such assignment
shall not relieve Purchaser of its obligations under this Contract.
17. Indemnification. Seller hereby agrees to indemnify and hold harmless
Purchaser from and against any claim, loss, damage, cause of action, liability,
judgment, cost or expense (including, without limitation, reasonable attorneys'
and legal assistants' fees) arising as a result of Seller's breach of any of the
representations and warranties contained herein or a breach of any of the terms
hereof. Purchaser hereby agrees to indemnify and hold harmless Seller from and
against any claim, loss, damage, cause of action, liability, judgment, cost or
expense (including, without limitation, reasonable attorneys' and legal
assistants' fees) arising as a result of Purchaser's breach of any of the terms
hereof; provided, however, that Purchaser's indemnity described above shall not
include lost profits, or consequential and incidental damages, arising as a
result of Purchaser's breach of this Contract.
18. Binding on Successors. This Contract shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
representatives, successors, and permitted assigns.
19. Counterparts. This Contract may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same agreement.
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20. Modification. This Contract may not be changed or modified except by an
agreement in writing signed by the party sought to be charged with such
modification.
21. Waiver. No failure on the part of either party to exercise any power or
right given hereunder or to insist upon strict compliance with any obligations
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof; provided, however, that either party may, at its sole
option, waive in writing any requirement, covenant or condition herein
established for the benefit of such party without affecting any of the other
terms or provisions of this Contract. No delay on the part of either party in
the exercise of any power or right hereunder shall operate as a waiver thereof
nor shall any single or partial exercise of any power or right preclude other or
further exercise thereof or the exercise of any power or right. All rights and
remedies existing under this Contract shall be cumulative and shall be in
addition to those otherwise provided by law.
22. Entire Agreement. This Contract constitutes the entire agreement among
the parties hereto and supersedes all prior discussions, letters of intent,
agreements, writings, and representations between Seller and Purchaser with
respect to the Property and the transaction contemplated herein.
23. Governing Law. This Contract shall be governed by the laws of the State
of Indiana.
(the remainder of this page intentionally left blank)
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IN WITNESS WHEREOF, Purchaser and Seller have executed this Contract
for Purchase of Real Estate as of the respective dates set forth below.
PURCHASER:
FLORAL PARK CEMETERY ASSOCIATION, INC.
By: /S/ BRUCE BUCHANAN
------------------------------------
Date: January 21, 1999
SELLER:
WINDSOR PARK PROPERTIES 3
By: Windsor Corp., General Partner
By: /S/ STEVE WAITE
--------------------------
Steve Waite, _____________
Date: January 15, 1999
By: Steven G. Waite
---------------------------
Printed:
----------------------
Title: President
------------------------
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RECEIPT FOR EARNEST MONEY
-------------------------
The undersigned hereby acknowledges receipt from Purchaser of a check in
the amount of Fifteen Thousand and No/100 Dollars ($15,000.00), payable to
Seller, and agrees to hold, disburse or return the funds evidenced thereby in
accordance with the terms of this Contract.
Dated: ________________ ___, 1998 TITLE COMPANY:
CHICAGO TITLE INSURANCE COMPANY
By:
Printed:
Title:
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Exhibit 10.2
ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into by
and between Floral Park Cemetery Association, Inc., an Indiana corporation (the
"Purchaser"), and Windsor Park Properties 3, a California limited partnership
(the "Seller").
WHEREAS, Seller, under a separate but related agreement, is selling to
Purchaser, certain real estate located in Marion County, Indianapolis, Indiana
commonly known as 3802 Cossell Road, Indianapolis, Indiana (the "Real Estate");
and
WHEREAS, The principal business activity operated on the Real Estate is a
mobile home park called Little Eagle Mobile Home Park (the "Business")
containing certain items of personal property; and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell,
substantially all of the assets owned by Seller that are used in the Business,
all upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the recitals and the representations,
warranties, covenants and agreements contained herein, the parties hereto agree
as follows:
ARTICLE I
Sale of Assets and Assumption of Liabilities
1.1. Purchased Assets and Excluded Assets.
(a) On the Closing Date (as hereinafter defined), Seller agrees to
sell, assign, transfer and deliver to Purchaser, and Purchaser agrees to
purchase, acquire and accept from Seller, all assets, properties and rights
of every kind and description, real, personal and mixed, tangible and
intangible, and wherever situated, owned by Seller and used in the Business
on the Closing Date including, but not limited to, the assets described in
paragraphs (i) through (vii) below used by Seller in the conduct of the
Business, except for the Excluded Assets (as hereinafter defined). The
assets to be purchased and sold hereunder shall be referred to in this
Agreement as the "Purchased Assets" and shall be purchased by Purchaser
free and clear of any and all mortgages, liens, security interests,
pledges, charges, claims, restrictions. encumbrances, options and rights of
third parties. The assets comprising the Purchased Assets are as follows:
(i) The name "Little Eagle Mobile Home Park" and all goodwill
associated therewith.
(ii) The "land contracts" for the sale of nine (9) mobile home
units listed on Exhibit A and Seller's complete interest in the
underlying mobile home units (the "Mobile Homes").
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(iii) All other assets used by Seller in the Business and located
on the Real Estate, except for the Excluded Assets.
(b) For purposes of this Agreement, the term "Excluded Assets" shall
mean the following:
(i) All accounts receivable arising from services performed or
products sold by Seller in connection with the Business on or prior to
the Closing Date except for the rent which will be prorated as set
forth in the agreement for the contract of the Real Estate (the "Real
Estate Contract") (the "Accounts Receivable").
(ii) The corporate minute books and all other books, records and
documents relating to the corporate organization of Seller.
(iii) All cash, cash equivalents, working capital, investments,
securities or financial instruments of any nature, whether on hand or
on deposit or otherwise related to the Business on or prior to the
Closing Date.
(iv) All tax returns, financial statements, accounting records,
employment records and tax refunds related to the Business on or prior
to the Closing Date.
(v) The cash surrender value of all life insurance policies owned
by Seller.
1.2. Assumption of Liabilities. Purchaser does not assume any of the
liabilities of Seller in any respect. By way of illustration, but not
limitation, all debts, obligations, taxes and other liabilities of any character
or description, whether accrued, unaccrued, matured, unmatured, known, unknown,
contingent or otherwise (including, but not limited to, all bank debt and
accounts payable), of Seller that arise or arose out of the ownership of the
Purchased Assets and/or the operation of the Business on or prior to the Closing
Date (collectively, the "Liabilities") shall be retained by Seller and shall not
be assumed by Purchaser. Seller agrees to perform, pay and discharge promptly
the Liabilities when due and to indemnify, defend and hold harmless Purchaser
with respect to the Liabilities, including any costs, expenses or attorneys fees
incurred by Purchaser as a result of being made a party, or otherwise protecting
itself from any assertion of liability against it. All utilities, rents and
similar items shall be prorated between Purchaser and Seller as of the Closing
Date in accordance with the terms of the Real Estate Contract.
1.3. Closing. Upon the terms and subject to the conditions precedent set
forth in this Agreement, the closing of the transactions contemplated hereby
(the "Closing") shall take place on a date and at a time mutually agreed upon by
Purchaser and Seller which is within thirty (30) days following satisfaction of
the conditions set forth in Article VI of this Agreement and in the Real Estate
Contract (the "Closing Date"). Unless terminated as provided herein, the Closing
shall occur contemporaneous with the closing of the transaction contemplated by
the Real Estate Contract. In the event of the termination of the Real Estate
Contract, this Agreement shall automatically terminate without action by either
party. On the Closing Date, Purchaser shall pay the Purchase Price (as defined
in Section 2.1 hereof), in accordance with the terms of Section 2.1 hereof, to
Seller, and Seller shall deliver to Purchaser a Bill of Sale in the form
reasonably acceptable to Purchaser, along with possession of the Purchased
Assets.
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ARTICLE II
Purchase Price
--------------
2.1. Purchase Price; Method of Payment. The purchase price for the
Purchased Assets shall be Fifty Thousand and no/100 Dollars ($50,000.00) (the
"Purchase Price"). The Purchase Price shall be paid by Purchaser to Seller in
immediately available funds at Closing.
2.2. Allocation of Purchase Price. The Purchase Price shall be allocated as
set forth in Exhibit A hereto. The parties agree to report the results of this
transaction for federal, state and local tax purposes in accordance with the
allocation set forth in Exhibit A.
ARTICLE III
Representations and Warranties of Seller
----------------------------------------
Seller hereby represents and warrants to Purchaser as follows:
3.1. Authority; Enforceability. This Agreement has been duly approved,
executed and delivered by Seller and constitutes a valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
3.2. Warranty of Title; Condition of Purchased Assets. As of the Closing
Date, Seller has and Purchaser will acquire good and marketable title to all of
the Purchased Assets, free and clear of all mortgages, liens, claims, pledges,
security interests, charges, restrictions, encumbrances, options and rights of
third parties. The Purchased Assets which are machinery, equipment and Mobile
Homes are being purchased by Purchaser in there "as is" "where is" condition and
Seller makes no representation regarding their operating condition. The
Purchased Assets which are inventory, supplies, furniture and fixtures are being
purchased by Purchaser in there "as is" "where is" condition and Seller makes no
representation regarding their condition, or as for the inventory, their
saleable quality.
3.3. No Violations. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby (a) conflicts with,
violates or constitutes a default under or breach of (i) Seller's Certificate of
Limited Partnership or Limited Partnership Agreement, (ii) any law, statute,
rule, regulation, ordinance or other government requirement, or (iii) any
promissory note, mortgage, bond, instrument, lease, contract, agreement,
understanding or arrangement to which Seller is a party or by which Seller or
the Purchased Assets are subject or bound; or (b) results or will result in the
creation of or gives any person, corporation or entity the right to create any
lien, charge, claim, security interest, option or other adverse right or claim
upon any of the Purchased Assets.
3.4. Law. To the best of Seller's knowledge, without a duty of inquiry,
there are no violations of any laws, statutes, rules, regulations, codes,
ordinances, orders or requirements by or affecting the Seller, the Business or
the Purchased Assets.
3.5. Other Contracts. Seller has not entered into any contract, agreement,
understanding, commitment or option, other than this Agreement, granting to any
party the right to purchase the stock of Seller, the Business or any of the
Purchased Assets.
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3.6. Taxes. Seller has (a) duly filed all tax returns of every type
required to be filed by it for all periods ended on or prior to the Closing
Date, and (b) paid all taxes, interest, penalties, assessments and other
governmental charges due or claimed to be due upon the Business, the Purchased
Assets, Seller or any of its income and operations for all periods ended on or
prior to the Closing Date. To the best of Seller's knowledge, without a duty of
inquiry Seller is not currently under audit by the Internal Revenue Service or
any other State or local taxing authority.
3.7. Litigation; Judgments. There are no claims, actions, suits,
proceedings, arbitrations, mediations, litigation or investigations pending or,
to the best of Seller's knowledge, threatened in any court or before any
governmental agency or authority, arbitration panel, mediator or otherwise (nor
does Seller have any knowledge of a basis for any claim, action, suit,
proceeding, litigation, arbitration, mediation or investigation) against, by or
affecting Seller, the Business or the Purchased Assets. Seller is not subject to
or bound by any outstanding judgment, order, directive, writ, injunction, decree
or requirement of any court, arbitration panel or government agency or authority
with respect to the Business or the Purchased Assets.
3.8. Employee Matters. Relative to the Business:
(a) Seller is not a party to or bound by any employment agreements,
and all employees of Seller are employed on an employee-at-will basis.
(b) All obligations and liabilities of Seller relating to its current
and former employees (including, without limitation, all salary,
compensation, taxes, sick leave and vacation) have been paid in full
through the Closing Date or will be paid as they come due.
(c) Seller does not sponsor, maintain, participate in or contribute to
any employee pension benefit plan, as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended, or any other
pension, retirement, profit-sharing, bonus or deferred compensation plan,
nor has Seller done so prior to the Closing.
(d) Seller understands, acknowledges and agrees that, by virtue of the
consummation of the transactions contemplated by this Agreement, Purchaser
does not (i) assume any liability or obligation of Seller to any of
Seller's current or former employees, or (ii) commit or undertake to
continue Seller's existing group health and hospitalization insurance plan,
if any.
3.9. Absence of Undisclosed Liabilities. There are no contracts,
agreements, leases, understandings, arrangements, liabilities, debts or
obligations of Seller of any nature (whether absolute, contingent, matured,
unmatured or otherwise) relating to or affecting the Business or the Purchased
Assets that will be binding or in force or effect after the Closing, except the
leases disclosed in the Real Estate Contract.
3. 10. No Third Party Consents. To the best of Seller's knowledge, without
a duty of inquiry, no consent, approval, authorization or waiver of any person,
corporation or other entity, any other third party or any governmental agency or
authority is required for the execution, delivery and performance of this
Agreement by Seller. This Agreement has been duly approved, executed and
delivered by Seller and constitutes a valid and legally binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
other laws of general applicability relating to or affecting creditors rights
and the general principles of equity. Seller is duly organized with full power
and authority to enter into and consummate the transaction contemplated herein,
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the execution of this Agreement and the sale contemplated hereby have been duly
and properly authorized and/or ratified and confirmed by appropriate action of
Seller. Seller has taken all requisite action to consummate this Agreement and
the sale contemplated hereby.
ARTICLE IV
Representations and Warranties of Purchaser
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
4.1. Authority; Enforceability. This Agreement has been duly approved,
executed and delivered by Purchaser and constitutes a valid and legally binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
ARTICLE V
Covenants
---------
5.1. Communications with Customers. On or before the Closing Date, Seller
shall, at its expense, send a letter to all customers of the Business notifying
them of Seller's sale of the Purchased Assets and recommending that such
customers continue their relationship with Purchaser. The content of any such
letter shall be subject to the prior approval by Purchaser and Seller.
5.2. Further Assurances. Each party hereto respectively shall use all
reasonable efforts and give all notices required to consummate the transactions
contemplated hereby and shall otherwise take, or cause to be taken, all actions
and do, or cause to be done, all other things necessary, proper or appropriate
to consummate and, thereafter' make effective the transactions contemplated by
this Agreement and the Exhibits hereto.
5.4. Telephone Number. Purchaser shall have the right to utilize Seller's
current telephone number indefinitely.
5.5. Indemnification Against Liabilities. In the event that there is any
inaccuracy in or breach of Seller's representations and warranties contained in
this Agreement or that any third party asserts any claim against Purchaser
relating in any way to the Purchased Assets or the conduct of the Business on or
prior to the Closing or to any Liability, then Seller shall indemnify, defend
and hold harmless Purchaser, and its directors, officers, agents, successors and
assigns, from and against all actions, lawsuits, proceedings, judgments,
liabilities, damages, losses, costs and expenses (including, but not limited to,
reasonable attorneys' fees and other costs of defense) incurred as a result of
such inaccuracy, breach or claim. In the event that there is any inaccuracy in
or breach of any of Purchaser's representations and warranties contained in this
Agreement or that any third party asserts any claim against Seller relating in
any way to the conduct of the Business after the Closing, then Purchaser shall
indemnify, defend and hold harmless Seller, and its directors, officers, agents,
successors and assigns, from and against all actions, lawsuits, proceedings,
judgments, liabilities, damages, losses, costs and expenses (including, but not
limited to, reasonable attorneys' fees and other costs of defense) incurred as a
result of such inaccuracy, breach or claim.
5
<PAGE>
ARTICLE VI
Conditions to Closing
---------------------
Purchaser's obligations hereunder shall be subject to the condition that as
of the Closing Date there is no breach of any of Seller's representations or
warranties hereunder in Paragraph 12; and to the satisfaction of the following
additional conditions precedent:
a. There shall have been no material casualty loss with respect to any
of the Purchased Assets;
b. Purchaser shall have been given true and correct copies of each of
the "land contracts" for the sale of the nine (9) mobile home units
referenced on Exhibit A, and shall, in its sole discretion, be satisfied
with the terms and conditions therein;
c. Seller shall furnish evidence, reasonably satisfactory to
Purchaser, that each of the purchasers of the nine (9) mobile home units
referenced on Exhibit A is current with respect to its payments under the
terms and conditions of the respective "land contracts" as of the date of
closing; and
d. There shall have been no material adverse changes in the Business,
or any aspect thereof; and
e. The parties must have satisfied all of the conditions to closing
under the terms of the Real Estate Contract and be ready to close on the
purchase of the Real Estate.
ARTICLE VII
Termination
-----------
Purchaser may terminate this Agreement upon any of the breach of Seller of
any provision of this Agreement or upon the occurrence of any of the following:
a. The failure, within a reasonable time period, of Seller to comply
with all of the conditions to closing reference in Article VI of this
Agreement;
b. Any material change in the truthfulness of any of Seller's
representations or warranties contained herein; and
c. Any event of default or termination under the terms of the
Real Estate Contract, including Paragraph 14, Default and Termination,
therein.
6
<PAGE>
ARTICLE VIII
Miscellaneous and General
8.1. Payment of Expenses. Each party hereto shall pay its own expenses
incident to this Agreement and transactions contemplated hereby.
8.2. Survival. The representations and warranties of the parties contained
in this Agreement shall survive the Closing for a period of one (1) year
following the Closing Date. No due diligence review or other investigation or
examination by Purchaser of the Purchased Assets, Seller or the Business shall
affect or limit the representations and warranties of Seller contained in this
Agreement, and Purchaser shall be entitled to rely upon such representations and
warranties notwithstanding any such due diligence review, investigation or
examination.
8.3. Modification or Amendment. The parties hereto may modify or amend this
Agreement at any time only by written agreement duly executed and delivered by
each of the parties hereto.
8.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
8.5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
8.6. Notices. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid as follows:
(a) If to Seller, to:
Windsor Park Properties 3
C/o Windsor Corporation
Attention: Steve Waite
6430 South Quebec Street
Englewood, Colorado 80111
With a Copy to:
Timmons & Inman, L.L.P.
Attn: Bruce J. Knickerbocker
300 Talon Centre
Detroit, Michigan 48207
(b) If to Purchaser, to:
Floral Park Cemetery Association, Inc.
Attention: Bruce Buchanan
27 Kessler Boulevard West Drive
Indianapolis, Indiana 46228
7
<PAGE>
With a Copy to:
BINGHAM SUMMERS WELSH & SPILMAN
Attention: Gary L. Klotz
2700 Market Tower
10 West Market Street
Indianapolis, IN 46204-2982
or to such other persons or addresses as may be designated in writing by the
party to receive such notice and delivered as provided herein.
8.7. Entire Agreement; Assignment. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement, and supersede all other prior
agreements, understandings, representations and warranties, both written and
oral, between the parties hereto with respect to the subject matter hereof, and
shall not be assignable by either party hereto without the prior written consent
of the other party.
8.8. Captions. The Article, Section and paragraph captions contained herein
are for convenience of reference only, do not constitute a part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof.
8.9. Construction of Agreement. This Agreement constitutes a negotiated
agreement between the parties hereto and the fact that one party or the other
shall have drafted a particular provision shall not be considered in the
construction of any provision.
8.10. Severability. If any provision or portion of this Agreement shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable, in whole or in part, such provision or portion shall be deemed to
be severed or, preferably, limited, but only to the extent required to render
the remaining provisions and portions of this Agreement enforceable. This
Agreement as thus amended shall be enforced to give effect to the intention of
the parties insofar as that is possible.
8.11. Certain References. Whenever in this Agreement a singular word is
used, it shall also include the plural wherever required by the context and vice
versa. All references in this Agreement to the neuter, masculine or feminine
shall mean or apply to the appropriate gender wherever required by the context
of this Agreement or to properly identify the appropriate persons or parties.
8.12. Taxes. All federal, state, local and other taxes, charges and
assessments (including, without limitation, interest, fines and penalties)
resulting from, imposed by virtue of or relating to the sale of the Purchased
Assets contemplated by this Agreement shall be paid by Seller.
(the remainder of this page intentionally left blank)
8
<PAGE>
IN WITNESS WHEREOF, Purchaser and Seller have executed this Asset Purchase
Agreement as of the respective dates set forth below.
PURCHASER:
FLORAL PARK CEMETERY ASSOCIATION, INC.
By: /S/ BRUCE BUCHANAN
----------------------------------------
Date: January 21, 1999
SELLER:
WINDSOR PARK PROPERTIES 3
By: Windsor Corp., General Partner
By: /S/ STEVE WAITE
------------------------------------
Steve Waite, ___________________
Date: January 15, 1999
By: Steven J. Waite
Printed:
---------------------------
Title: President
9
<PAGE>
Exhibit A
Listing and Valuation of Assets
Nine (9) Mobile Home Units listed on the attached Exhibit A-1 $40,000
The name "Little Eagle Mobile Home Park and all other Goodwill 10,000
------
Totals $50,000
=======
10
<PAGE>
Exhibit A-1
Land Contract Sales of Mobile Home Units
All Information is per Seller:
<TABLE>
<CAPTION>
Projected
Outstanding
Balance
Monthly per
Original Term of Payment Seller
Contract Date of pmts Interest (per as of
Unit Lot# Year Manufacturer Size Price Sale (yrs) Rate Seller) Closing
---- ---- ---- ----------------- ---- --------- -------- --------- -------- ------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 10 1972 Highland 12x54 6000 2/20/98 4 12.00% $131.49 $4,866.45
2 21 1970 Landola 12x60 6000 5/8/98 4 12.00% 131.44 5,188.10
3 23 1977 SVN 14x70 3000 3/11/98 2 12.00% 131.81 1,836.39
4 51 1968 Landola 12x52 6000 6/30/98 4 12.00% 144.84 5,293.07
5 59 1989 Redibuilt 12x38 2000 9/1/98 1 12.00% 151.05 1,359.67
6 65 1970 Landola 12x48 6000 12/19/9 4 12.00% 142.00 4,648.68
7 77 1982 ELO 14x55 3500 3/27/98 25 12.00% 116.24 2,447.28
8 86 1973 Highland 12x54 6500 4/28/98 4 12.00% 142.51 5,505.34
9 90 1966 Donabella 12x60 6000 5/22/98 4 12.00% 131.44 5,293.07
45000 $1,222.82 $36,438.05
</TABLE>
